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    Wisconsin Lawyer
    January 01, 2017

    Court of Appeals Digest

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

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Law

    Immunity from Prosecution as “Aider” of Person Believed to Be Suffering from Drug Overdose – Wis. Stat. Section 961.443

    State v. Williams, 2016 WI App 82 (filed 19 Oct. 2016) (ordered published 16 Nov. 2016)

    HOLDINGS: 1) The determination of immunity under Wis. Stat. section 961.443 is to be made by the circuit court before trial. 2) The defendant bears the burden of proving entitlement to immunity under this statute by a preponderance of the evidence. 3) The defendant was not entitled to immunity for bail-jumping charges premised on the drug possession crimes for which she was entitled to immunity.

    SUMMARY: This case concerns Wis. Stat. section 961.443, which provides that an individual who aids another person suffering from a drug overdose “is immune from prosecution under s. 961.573 for the possession of drug paraphernalia, under s. 961.41(3g) for the possession of a controlled substance or a controlled substance analog, and under s. 961.69(2) for possession of a masking agent….”

    Defendant Marie Williams was charged with various drug possession and drug paraphernalia offenses after a single-vehicle accident; she claimed that at the time of the accident she was transporting her passenger to a hospital because he had overdosed on drugs. At the time of this incident, Williams was out on bond in a pending felony case. Accordingly, the district attorney added bail-jumping charges alleging that Williams violated the conditions of her bond by committing the new drug offenses charged in this case.

    In a majority decision authored by Judge Gundrum, the court of appeals first addressed some procedural issues relating to the immunity provided for in Wis. Stat. section 961.443. The court agreed with both parties that “a circuit court should determine pretrial whether a defendant, such as Williams, is entitled to immunity pursuant to § 961.443. If the defendant meets the requirements of the statute, the charges for which immunity is provided thereunder must be dismissed; if not, they may proceed” (¶ 8). The appellate court further agreed with the parties that “the defendant should bear the burden of proving by a preponderance of the evidence his/her entitlement to Wis. Stat. § 961.443 immunity” (¶ 14).

    Williams argued that the immunity afforded by Wis. Stat. section 961.443 should not only immunize her as to the drug possession charges but also should immunize her as to the bail-jumping charges premised on her illegal drug possession. The appellate court disagreed with this contention. The statute specifically lists the crimes to which the immunity applies (Wis. Stat. §§ 961.573, 961.41(3g), and 961.69(2)). Said the court, “[o]n the bail jumping charges, Williams is being prosecuted under Wis. Stat. § 946.49(1)(b), not § 961.573 or § 961.43(3g). That ends it” (¶ 23).

    The majority also responded to the concern expressed in Judge Reilly’s concurrence that case law suggests that, if immunity applies in this case to the drug possession charges, then the bail-jumping charges cannot stand because the state would be unable to prove the underlying immunized drug-possession crimes. The majority concluded that even if Williams is found to be immune from prosecution for the drug possession and drug paraphernalia charges, she nonetheless may be properly prosecuted and convicted of the bail-jumping charges, as long as the state proves the elements of bail jumping; this includes “proving at trial the elements of the possession of drugs and drug paraphernalia crimes which underlie the bail jumping charges” (¶ 30).

    Criminal Procedure

    Restitution – Cost of Security System – Causal Nexus Between Cost of Security System and Crime Considered at Defendant’s Sentencing

    State v. Queever, 2016 WI App 87 (filed 21 Oct. 2016) (ordered published 16 Nov. 2016)

    HOLDING: The circuit court properly included the cost of a home security system as an item of restitution in this attempted-burglary case even though the system was installed before the attempted burglary.

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

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

    SUMMARY: After suffering multiple nighttime burglaries of her home, a woman (the victim) paid to have a security system (alarm and camera) installed at her residence. That system was used to solve an attempted burglary for which the defendant was prosecuted. The circuit court in the attempted-burglary prosecution ordered that defendant Queever pay restitution to the victim for the cost of the security system. The defendant appealed that order because the victim purchased the system before the attempted burglary for which he was prosecuted. In a decision authored by Judge Stark, the court of appeals affirmed.

    Wisconsin Statutes section 973.20 provides that the court shall order restitution to any victim of a “crime considered at sentencing.” “The statutory term ‘crime considered at sentencing’ means ‘any crime for which the defendant was convicted and any read-in crime.’ Wis. Stat. § 973.20(1g)(a).
    Before a court can order restitution, a ‘causal nexus’ must be established between the ‘crime considered at sentencing’ and the victim’s alleged damage. In proving causation, a victim must show that the defendant’s criminal activity was a substantial factor in causing damage” (¶ 11) (internal quotations and citation omitted).

    The statutory term “crime considered at sentencing” is defined in broad terms. “It encompasses all facts and reasonable inferences concerning the defendant’s activity related to the ‘crime’ for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was convicted. Accordingly, when determining whether there is a causal nexus between the victim’s claimed damage and the crime considered at sentencing, a court should take a defendant’s entire course of conduct into consideration” (¶ 21) (internal quotations and citations omitted).

    Said the appellate court: “The circuit court found that defendant Queever committed the previous burglaries of the victim’s home, and we have already determined that finding was not clearly erroneous. Those prior burglaries were ‘related to’ the attempted burglary that was considered at Queever’s sentencing in that the prior burglaries and the attempted burglary involved the same home, the same victim, and the same time of night, and each involved the perpetrator entering or attempting to enter the victim’s home through the same sliding glass door. On these facts, we conclude the prior burglaries and the attempted burglary were part of a single course of criminal conduct. Under prior case law, and given the liberal interpretation of the restitution statute, the prior burglaries therefore constituted part of the ‘crime considered at sentencing’” (¶ 22) (citations omitted).

    Accordingly, the circuit court properly included the cost of the security system as an item of restitution in this case.

    Restitution – Proving Loss

    State v. Tarlo, 2016 WI App 81 (filed 5 Oct. 2016) (ordered published 16 Nov. 2016)

    HOLDING: The mother of a child depicted in a pornographic image did not meet her burden of proving that her claimed loss was caused by the criminal conduct of the person who possessed the pornography.

    SUMMARY: Defendant Tarlo pleaded guilty to possessing child pornography in relation to five images on his computer. The mother of one of the children depicted claimed lost income of $60,000 stemming from the arrest of her own husband for producing child pornography, including the image of his own daughter, found on Tarlo’s computer (see ¶ 3). The court ordered Tarlo to pay $10,000, one-sixth of the total claimed, on grounds that the daughter’s image had been sent to six people.

    The court of appeals reversed in an opinion authored by Judge Gundrum. Tarlo’s actions in this case occurred only after the husband produced the pornographic image of his daughter; thus, Tarlo did not cause the husband to produce the images. “Indeed, there is no evidence whatsoever to suggest the husband would not have produced the pornography if Tarlo or the others had not subsequently viewed and possessed it” (¶ 17).

    “In this case, the mother failed to meet her burden of proving she incurred any losses as a result of Tarlo’s conduct; she only presented evidence she incurred losses as a result of her husband’s conduct of producing the child pornography” (¶ 19).

    Education Law

    Parental Choice Programs – Department of Public Instruction

    Ceria M. Travis Acad. Inc. v. Evers, 2016 WI App 86 (filed 31 Oct. 2016) (ordered published 16 Nov. 2016)

    HOLDING: An agreement between the Wisconsin Department of Public Instruction (DPI) and a private school was valid; the agreement required a surety bond and that the school waive its right to judicial review.

    SUMMARY: Travis Technology High School (Travis Tech), which operated in the Milwaukee parental choice program (MPCP), failed to file required financial documents in a timely manner. To avoid a preliminary decision barring it from participating in the MPCP, Travis Tech entered into an agreement with the DPI. The DPI later barred Travis Tech from participating in the MPCP when it failed to meet a deadline for securing a surety bond, as required by the agreement. A circuit court ruled, however, that two provisions in the agreement were unenforceable, namely, the requirements that Travis Tech obtain a surety bond and waive its right to judicial review.

    The court of appeals reversed the circuit court in an opinion authored by Judge Kessler. The bond provision was not contrary to state law. “Nothing in the Administrative Code prohibits parties represented by counsel from entering into a Settlement Agreement, including one such as this, which provides benefits to both parties. The essence of this agreement allowed Travis Tech to remain in the MPCP program if it obtained the bond it agreed to obtain. In turn, the Agreement would allow DPI to avoid court litigation if Travis Tech failed to perform what it promised. Mutually advantageous resolution of disputes between represented parties is not prohibited by any statute or administrative rule which the parties have brought to our attention” (¶ 20).

    The waiver provision also was enforceable. Travis Tech was represented by counsel during negotiations and when signing the agreement, and it conceded that its consent was knowing and voluntary (see ¶ 24). Travis Tech “made its choice” (¶ 26).

    Labor and Employment Law

    Counties – Employee Discipline

    State ex rel. Miller v. Milwaukee Cty. Pers. Review Bd., 2016 WI App 83 (filed 31 Oct. 2016) (ordered published 16 Nov. 2016)

    HOLDING: A disciplinary decision by the county personnel review board failed to conform to an otherwise valid board rule.

    SUMMARY: A deputy sheriff, Miller, was subject to discipline by Milwaukee County’s personnel review board (PRB). Instead of discharging Miller, the PRB imposed a 90-day suspension followed by a “career-long ‘re-evaluation period,’ leading to a termination for any rule violation” (¶ 1). The circuit court affirmed the PRB’s disciplinary decision.

    The court of appeals, in an opinion authored by Judge Brennan, affirmed but directed the PRB on remand to impose terms consistent with this opinion. First, the court held that the PRB rule, which allows for the imposition of a reevaluation period, complied with pertinent state statutes (see ¶¶ 12, 17). “Good policy” supported the statutory authority to create workable rules (¶ 19). In this instance, however, the terms actually imposed were “overly broad” and violated the PRB’s own rule (¶ 22).

    “While the rule leaves the length of the period of re-evaluation up to the PRB, it does require the PRB to ‘detail[] the conduct for which an employee may be separated without recourse to the PRB.’ … In failing to detail all of the rules that would subject Miller to termination from employment, the PRB went further than its rule permitted. That lack of detail and overbreadth, especially when added to the fact that the re-evaluation period continued throughout his employment, was insufficiently related to the purpose of the rule – rectifying unacceptable behavior – and violated the precise requirements of the rule for detail and linkage to curative behavior” (¶ 24).

    Act 10 – Annual Recertification Requirements for Public Employee Labor Organizations

    Wisconsin Ass’n of State Prosecutors v. Wisconsin Emp’t Relations Comm’n, 2016 WI App 85 (filed 12 Oct. 2016) (ordered published 16 Nov. 2016)

    HOLDING: The holding of the annual recertification elections for public employee labor organizations is mandatory and cannot be made contingent on the filing of a recertification election petition.

    SUMMARY: In 2011 the Wisconsin Legislature enacted 2011 Wisconsin Act 10, which amended the State Employment Labor Relations Act (SELRA) and the Municipal Employment Relations Act (MERA) to implement annual recertification requirements for labor organizations. These two acts (as amended) now provide that annually the Wisconsin Employment Relations Commission (WERC) “shall conduct an election” to certify the representative of a collective bargaining unit that contains a general employee.

    After passage of Act 10, the WERC promulgated chapter ERC 80 of the Wisconsin Administrative Code (hereinafter chapter ERC 80), concerning the conduct of annual recertification elections under SELRA, and chapter ERC 70 of the Wisconsin Administrative Code (hereinafter chapter ERC 70), concerning the conduct of elections under MERA. In this case the unions challenged a requirement in these administrative rules that a labor union representing state employees or municipal employees annually file a recertification petition by a date specified in the rules.

    The circuit court issued an order invalidating those provisions of chapter ERC 70 and chapter ERC 80 that require an existing exclusive representative to file a petition to qualify for a recertification election. In a decision authored by Judge Brash, the court of appeals affirmed.

    Said the appellate court: “[T]he legislature clearly uses the word ‘shall’ when referring to conducting an election to certify the representative of a collective bargaining unit that contains a general employee. See Wis. Stat. § 111.83(3)(b). The legislature’s use of the word ‘shall’ indicates that the act of holding an election by the Commission is mandatory. Therefore, if the statutes were intended to require the filing of an election petition as a prerequisite for holding a recertification election, the legislature would have included such requirement in the language of the statute; it did not. Accordingly, we conclude that the holding of the annual elections [is] mandatory and cannot be contingent upon the filing of a recertification election petition” (¶ 19) (citations omitted).

    Local Government Law

    Social-Host Laws – “Strict Conformity” with State Statutes

    County of Fond du Lac v. Muche, 2016 WI App 84 (filed 26 Oct. 2016) (ordered published 16 Nov. 2016)

    HOLDING: A county’s “social-host” ordinance was unlawful because it was not in strict conformity with state statutes.

    SUMMARY: Muche hosted a party for his son’s high school graduation. Police cited him for violating the county’s social-host ordinance because underage persons brought beer with them to the party. The circuit court rejected Muche’s challenge that the ordinance was invalid because it failed to strictly conform to state law.

    The court of appeals reversed in an opinion authored by Chief Judge Neubauer. “When a statute addressing an issue of statewide concern requires strict conformity, local governments cannot enact ordinances that go beyond the scope of the state regulation nor can the penalty accompanying the ordinance exceed the fine or civil forfeiture imposed by the state statute” (¶ 9).

    The court held that Nichols v. Progressive Northern Insurance Co., 2008 WI 20, 308 Wis. 2d 17, 746 N.W.2d 220,controlled its decision.

    “In sum, Fond du Lac’s social host ordinance ‘forbids what the statute does not forbid and in that respect creates liability beyond the scope of the statute.’ … Fond du Lac’s definition of ‘any residence, premises or on any other private or public property’ is outside the scope of the meaning of ‘on premises owned by the adult or under the adult’s control’ under Wis. Stat. § 125.07(1)(a)3. and the ordinance also prohibits conduct allowed under § 125.07(1)(a)4.” (¶ 28). The county ordinance also violated the state statute by authorizing penalties in excess of those set forth in the statute (see ¶ 29).

    Judge Reilly concurred. He was in “full agreement” with the majority but contended that the case could have been resolved solely on the excessive-penalty issue.

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