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    Wisconsin Lawyer
    December 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 Procedure

    Search Warrants – Probable Cause – Information from Anonymous Tipster

    State v. Hillary, 2017 WI App 67 (filed 20 Sept. 2017) (ordered published 25 Oct. 2017)

    HOLDING: The search warrant authorizing the search of the defendant’s residence was supported by probable cause.

    SUMMARY: The issue in this case was whether a search warrant for the defendant’s residence was supported by probable cause. The application for the warrant was largely based on hearsay information contained in an anonymous tip. Under existing case law, the assessment of hearsay information involves an evaluation of the veracity of the hearsay declarant as well as the basis of the declarant’s knowledge.

    “When an informant is entirely anonymous, as in this case, his or her credibility cannot be determined. The reliability of the information, however, nonetheless may be shown by the totality of the circumstances, including the presence of detail in the information, and corroboration of details of an informant’s tip by independent police work. In considering the basis of an informant’s knowledge, a court considers whether the declarant had a basis for his or her allegations that evidence of a crime would be found at a certain place. The basis of the informant’s knowledge is most directly shown by an explanation of how the declarant came by his or her information. The basis also may be shown indirectly. For example, the wealth of detail provided by the informant may be sufficient to permit an inference that the basis of the declarant’s knowledge is sound” (¶ 9) (internal quotations and citations omitted).

    The “totality of circumstances” approach “permits a deficiency in indicia demonstrating an informer’s veracity to be compensated for by a strong showing concerning the informer’s basis of knowledge, or by some other indicia of reliability” (¶ 10).

    In a decision authored by Judge Gundrum, the court of appeals concluded that a deputy sheriff’s affidavit in support of the search warrant for drugs believed to be at the defendant’s residence was supported by probable cause. The deputy’s affidavit stated that he was a county drug enforcement unit officer, had 25 years’ law enforcement experience, and had conducted numerous criminal investigations.

    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.

    He further averred that he received an anonymous tip stating that, on a specific date in 2014, the tipster went to the defendant’s residence to fix a vehicle and the defendant proceeded to show him a very large marijuana “grow” in a garage on the defendant’s property. The tipster further stated that there were several grow rooms within the garage containing several large marijuana plants and that the defendant was bragging about how much money he made selling marijuana.

    The appellate court concluded that the details from the tipster give the tip the “ring of truth” (¶ 15). “[The] tipster provided specific and detailed information that explained that he or she personally observed the grow operation, the nature of the operation observed, and how/why it was that the tipster was in a position to learn this information” (¶ 16). The affidavit further alleged that the deputy had verified the address of the defendant’s residence and had personally driven by that residence and confirmed there was a garage. Moreover, the affidavit referred to a tip received in 2012 that the defendant had an ongoing marijuana grow operation at his residence (a tip that was never found to be untrue).

    In sum, the court of appeals concluded that the evidence furnished in the deputy’s affidavit established a fair probability that a search of the defendant’s residence would uncover evidence of an illegal marijuana grow operation. The warrant was thus supported by probable cause and was valid (see ¶ 21).

    Employment Law

    Right-to-Work Law – Constitutionality

    International Ass’n of Machinists Dist. 10 v. State, 2017 WI App 66 (filed 19 Sept. 2017) (ordered published 25 Oct. 2017)

    HOLDING: The state’s “right-to-work law” is constitutional.

    SUMMARY: The Wisconsin Legislature enacted its right-to-work law in 2015 Wis. Act 1. Two unions and a federation of labor organizations (hereinafter the unions) filed a declaratory action challenging the constitutionality of the act. The Dane County Circuit Court found Act 1 unconstitutional.

    The court of appeals reversed in an opinion authored by Judge Seidl. The opinion explains Act 1’s effect on collective bargaining by unions. Under “union shop” clauses, both union members and union nonmembers had to bear their “fair share” of the costs for union representation. Act 1 eliminated this arrangement. Essentially, the unions argued that Act 1
    violated the “takings clause” of the Wisconsin Constitution by permitting nonmember employees to reap the same benefits as union employees without paying any of the costs to support the unions.

    The court of appeals held Act 1 constitutional “as applied.” There was no “taking.” “Rather, Act 1 merely precludes the unions from requiring non-member employees to pay fees designed to cover the costs of performing the duty of fair representation” (¶ 27). The court of appeals also discussed the duty of fair representation, which is optional (see ¶ 30). Finally, the court of appeals rejected the contention that Act 1 constituted a regulatory taking.

    Municipal Law

    County Property Taxes – County Ambulance Service

    Town of Grant v. Portage Cty., 2017 WI App 69 (filed 21 Sept. 2017) (ordered published 25 Oct. 2017)

    HOLDING: Portage County has the authority to levy the property tax for the county’s ambulance service pursuant to the general grant of taxing authority under Wis. Stat. section 59.51(2).

    SUMMARY: Portage County has provided ambulance services, as a component part of an EMS (emergency medical services)-related program, to all county residents for more than 60 years. The cost of Portage County’s EMS program, including the cost of providing ambulance services to all Portage County residents, is part of the county’s annual operations budget and is included as part of the county-purpose property tax levy. The town of Grant, located in Portage County, also provides ambulance services to its residents and funds this service via its own local property tax levy.

    The town sued the county, seeking a declaratory judgment that Portage County does not have lawful authority to collect property taxes for the county’s ambulance service from town of Grant residents, along with related injunctive and monetary relief. The parties moved for summary judgment. The circuit court granted the county’s motion, denied the town’s motion, and dismissed the amended complaint.

    In a decision authored by Judge Fitzpatrick, the court of appeals affirmed. It concluded that “Portage County has the authority to levy the property tax for the County’s ambulance service pursuant to the general grant of taxing authority under Wis. Stat. § 59.51(2)” (¶ 1).

    It rejected the town’s argument that the property tax levy for the ambulance service exceeds the authority granted to counties by the home-rule statute, Wis. Stat. section 59.03(1) (see ¶¶ 18-27).

    The court of appeals also rejected the town’s assertion that the county did not comply with the requirements of Wis. Stat. section 59.03(2) when imposing the tax. This statute, titled “Consolidation of Municipal Services, Home Rule, Metropolitan District,” was inapplicable because “the undisputed facts in the record show there was no consolidation of ambulance services by Portage County” (¶ 41).

    Real Property

    Adverse Possession – Exclusivity

    Kruckenberg v. Krukar, 2017 WI App 70 (filed 27 Sept. 2017) (ordered published 25 Oct. 2017)

    HOLDING: In adverse-possession litigation, the circuit court properly denied summary judgment in favor of the defendant on exclusivity; sufficient evidence supported the jury’s verdict in favor of the plaintiff.

    SUMMARY: The plaintiff and the defendant own adjoining land. The plaintiff brought an adverse-possession claim against the defendant regarding a strip of land “designed as a roadway.” The circuit court denied the defendant’s motion for summary judgment. A jury found in favor of the plaintiff.

    The court of appeals affirmed in an opinion authored by Judge Reilly. “Adverse possession is typically not suitable for summary judgment as one claiming adverse possession must establish the length of occupancy, the area occupied, and the nature and character of occupancy, all of which are issues of fact” (¶ 4). Here, just the “existence of the northern fence in and of itself is sufficient to create an issue of material fact as the ‘substantial enclosure’ requirement is flexible and subject to no ‘precise rule in all cases’ as ‘[s]o much depends upon the nature and situation of the property’” (¶ 9).

    Sufficient evidence also supported the jury’s verdict in favor of the plaintiff. Rejecting the defense argument that the northern fence was insufficient to give notice of the plaintiff’s assertion of ownership, the court observed that a fence “is universally recognized as a way to indicate a boundary line” (¶ 12). As to exclusivity, the defendant’s evidence that other people had also used the driveway went to the weight, not the sufficiency, of the evidence.

    Unemployment Compensation

    Overpayments – Recovery

    DWD v. LIRC, 2017 WI App 68 (filed 12 Sept. 2017) (ordered published 25 Oct. 2017)

    HOLDING: Because workers received unemployment compensation overpayments through no fault of their own, the Labor and Industry Review Commission (LIRC) properly denied recovery sought by the Department of Workforce Development (DWD).

    SUMMARY: Three disabled workers who also received Social Security disability insurance (SSDI) payments applied for unemployment compensation when they became unemployed. There followed much procedural wrangling among the DWD, LIRC, and the circuit court over the workers’ eligibility to receive unemployment compensation during the weeks they received SSDI payments. By the time the eligibility issue finally was resolved, the claimants had received overpayments of varying amounts, all less than $3,000.

    LIRC determined that the DWD had waived the ability to recover the overpayments pursuant to Wis. Stat. section 108.22(8)(c). “In essence, LIRC waived recovery of the overpayments as to all three claimants, concluding that the appeals tribunal and LIRC followed an erroneous interpretation of the eligibility statute, which resulted in the overpayments; thus, the overpayments were a result of departmental error and occurred through no fault of the claimants” (¶ 6). The circuit court affirmed.

    The court of appeals affirmed in an opinion authored by Judge Kessler. The court applied “due-weight deference” to LIRC’s determination (¶ 13). First, LIRC did not treat the circuit court decisions in the eligibility litigation as “departmental error.” Rather, “LIRC found as a fact that the departmental error was caused by the appeals tribunal and LIRC both getting the law wrong” (¶ 18). The opinion discusses the interplay among the DWD, LIRC, and the circuit court in construing pertinent statutes (see ¶ 20).

    Finally, the court of appeals rejected the DWD’s “invitation” to read into the statute a “reasonable misinterpretation exception” to the waiver statute (¶ 24). Creation of any such exception was for the legislature.

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