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    Wisconsin Lawyer
    September 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

    Construction Liens

    Sale of Property – Constructive Notice

    Bayland Bldg. Inc. v. Spirit Master Funding VIII LLC, 2017 WI App 42 (filed 7 June 2017) (ordered published 26 July 2017)

    HOLDING: A builder had no constructive notice that its customer had sold its entire interest in the property to an “investor”; hence, the builder’s construction lien remained in effect.

    SUMMARY: A customer, Siren Saukville LLC, contracted with a builder to construct a $3 million building. The builder had a valid construction lien on the property. In an email exchange, Siren notified the builder that it was dealing with another “investor,” Spirit Master, and that the building warranty had to be modified. When the builder completed the project, Siren refused to pay nearly $500,000 for work done because it had sold all its interest to Spirit Master. The builder sought foreclosure on its lien. The circuit court granted summary judgment in favor of Spirit Master, finding that the builder had constructive notice that the property had been conveyed to Spirit Master.

    The court of appeals reversed in an opinion authored by Judge Reilly. The builder lacked actual or constructive notice of the transfer of ownership. As a matter of law, the email exchanges “would not cause a contractor of reasonable prudence and caution to believe that Siren had sold its entire interest in the property” (¶ 13). The law does not require contractors to keep themselves updated by searching title records after construction begins. The emails only signaled Spirit Master’s role as an “investor”; it was reasonable to assume that Siren “was going to remain in some ownership capacity” (id.).

    Criminal Law

    Self-defense – Criminal Negligence – Ineffective Assistance of Counsel

    State v. Langlois, 2017 WI App 44 (filed 28 June 2017) (ordered published 26 July 2017)

    HOLDINGS: Trial counsel was not ineffective for failing to object to jury instructions that accurately stated the law; sufficient evidence supported the conviction.

    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: The defendant stabbed his brother to death while the two fought over items that the victim planned to take with him on National Guard duty. The original charge was first-degree reckless homicide but the jury convicted the defendant on the lesser offense of homicide by negligent handling of a dangerous weapon. The circuit court denied the defendant’s postconviction motions, which asserted ineffective assistance of trial counsel.

    The court of appeals affirmed in an opinion authored by Judge Neubauer. Trial counsel was not ineffective in failing to object to the instructions because they were accurate. When read as a whole, the jury instructions accurately defined self-defense and informed the jury that the definition applied to all charges, including the lesser offense of negligent homicide. The jury instruction also adequately placed the burden on the state to prove all elements (see ¶ 30). Similarly, the instructions on “accident” also correctly stated the law relative to the negligence element (see ¶ 35). Finally, sufficient evidence supported the conviction for homicide by negligent use of a dangerous weapon (a fishing knife with a six-inch blade) (see ¶ 48).

    Judge Reilly dissented. He found it “disingenuous and illogical” to conclude that a “jury may utilize instructions for crimes not under consideration to fix erroneous instructions for the crime under consideration” (¶ 52). Counsel was ineffective for not objecting to an instruction on negligent homicide, which removed the state’s burden to disprove self-defense (see ¶ 57). The dissent also found the “accident” instruction in error as it related to the definition of “criminal negligence.”

    Criminal Procedure

    Guilty Pleas – Failure to Inform Defendant of Lifetime GPS Monitoring as a Consequence of Conviction

    State v. Muldrow, 2017 WI App 47 (filed 21 June 2017) (ordered published 26 July 2017)

    HOLDING: Lifetime GPS monitoring is not punishment and, therefore, it is not a direct consequence of conviction of which the defendant had to be informed before his guilty plea.

    SUMMARY: Defendant Muldrow pleaded guilty to third-degree sexual assault and sexual assault of a child under age 16. Nothing in the plea colloquy informed him of the possibility of lifetime GPS monitoring after he completed his sentence. Muldrow sought plea withdrawal as a matter of right on the grounds that lifetime GPS monitoring is a “punishment” that he must be informed of, the failure of which rendered his plea unknowing and unintelligent in violation of his constitutional rights. The circuit court denied Muldrow’s motion for plea withdrawal.

    In an opinion authored by Judge Hagedorn, the court of appeals affirmed. It commenced its analysis by observing that a “circuit court is not required to inform a defendant of every consequence of his or her plea. Rather, the due process right undergirding a knowing and intelligent plea requires knowledge of the direct consequences of the plea. A direct consequence is ‘one that has a definite, immediate, and largely automatic effect on the range of [a] defendant’s punishment”(emphasis added). A defendant does not have any due process right to be informed about collateral consequences of his or her plea. A collateral consequence is ‘indirect’ and does ‘not flow from the conviction’” (¶ 10) (citations omitted).

    The question before the appellate court was whether, pursuant to the guilty plea statute (Wis. Stat. section 971.08) or the requirements of due process, lifetime GPS monitoring is a direct consequence or more precisely, whether lifetime GPS monitoring is a “punishment” at all (see ¶ 12). See State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995) (explaining that whether something is a punishment is a “threshold question” to whether it is a direct consequence of the plea). 

    The parties offered different legal tests for determining whether GPS monitoring is punishment. Muldrow argued for application of what is known as the intent-effects test (which takes into account legislative intent and punitive effects); the state countered that the court should apply a “fundamental purpose” standard (which would examine the primary or fundamental goal of GPS monitoring).

    The appellate court concluded that both parties advanced a reasonable interpretation of the case law. “However, we need not definitively decide whether the proper analysis is the intent-effects test, the `fundamental purpose’ approach used in Dugan, or some other iteration of the inquiry. We conclude that no matter which test is applied, the result here is the same. The intent and primary goal of lifetime GPS monitoring is clearly to protect the public and is nonpunitive in nature. And while the statutory scheme no doubt works some nontrivial punitive effects, these punitive effects do not override the primarily nonpunitive intent” (see ¶ 23).

    The court thus concluded that “lifetime GPS monitoring is not punishment, and therefore, not a direct consequence that Muldrow had to be informed of prior to his plea. Accordingly, Muldrow has not made a prima facie case that the circuit court failed to comply with Wis. Stat. § 971.08 or other court mandated plea colloquy procedures, and he is not entitled to withdraw his plea” (¶ 42).

    Improper and Irrelevant Sentencing Factor – DNA Surcharge

    State v. Williams, 2017 WI App 46 (filed 28 June 2017) (ordered published 26 July 2017)

    HOLDINGS: 1) The circuit court did not sentence the defendant more harshly because he refused to stipulate to restitution. 2) The mandatory DNA-surcharge statute is an unconstitutional ex post facto law as applied to the defendant.

    SUMMARY: Defendant Williams pleaded guilty to attempted armed robbery (a felony). He raised two issues on appeal. First, he argued that he is entitled to resentencing because the circuit court sentenced him more harshly because he would not stipulate to restitution. Second, he contended that the circuit court erred on ex post facto grounds in requiring him to pay a mandatory $250 DNA surcharge. In a majority decision authored by Judge Gundrum, the court of appeals affirmed in part and reversed in part.

    Regarding the defendant’s claim that the circuit court sentenced him more harshly because he would not stipulate to restitution, the appellate court concluded that the appeal on this issue “does not get out of the gate because [the defendant] has not convinced us the court sentenced him more harshly on this basis” (¶ 14). This conclusion was based on a careful parsing of the sentencing judge’s words.

    The defendant also argued that the retroactive mandatory DNA surcharge, as applied to him, violates the ex post facto clauses of the state and federal constitutions. The defendant committed the attempted armed robbery in this case on April 25, 2013. The law then provided that a circuit court could exercise its discretion in imposing a $250 DNA surcharge; it was not mandatory.

    However, the defendant was sentenced in this case after 2013 Wis. Act 20 took effect. Act 20 requires the mandatory imposition of a $250 surcharge for every felony conviction (see ¶ 25). At the sentencing in the present case, the circuit court ordered the defendant “to submit the mandatory DNA sample” and pay “the mandatory surcharge” (¶ 12). The record shows that the defendant was ordered to provide a DNA sample and pay a $250 surcharge in a prior felony case in 2009. Accordingly, the state acknowledged in the current appeal that the defendant does not have to provide a new DNA sample because of his conviction in the present case, and there will be no DNA-analysis-related activity in relation to the attempted armed robbery conviction.

    Said the appellate court: “Under these circumstances, based upon our holdings in [State v. Elward, 2015 WI App 51, 363 Wis. 2d 628, 866 N.W.2d 756]and [State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758], the mandatory DNA surcharge, which was not mandatory at the time Williams committed this crime, bears no relation to the cost of a DNA test because he did not have to submit to a test, has resulted in the State receiving money for nothing, and is not rationally connected to the surcharge’s intended purpose. Under Elwardand Radaj, the imposition of the mandatory surcharge here was a fine, not a fee, and on balance has a punitive effect and, therefore, the statute is an unconstitutional ex post facto law as applied to Williams” (¶ 26) (internal citations, quotations, and certain punctuation omitted).

    The appellate court remanded the matter to the circuit court with directions “that the circuit court apply the surcharge statute that was in effect when Williams committed the crime in this case. Under that statute, the circuit court exercises discretion to determine whether Williams should be assessed a $250 DNA surcharge” (¶ 27) (internal quotations and certain punctuation omitted).

    Judge Hagedorn filed a concurring opinion joining the majority opinion in full. However, he wrote separately to express his view that the Elward and Radaj cases “were wrongly decided, and to urge the Wisconsin Supreme Court to take this case and bring clarity and certainty to this area of the law” (¶ 28).

    Employment Law

    Government Whistleblowers – “Supervisor”

    Bethards v. Wisconsin Dep’t of Workforce Dev., 2017 WI App 37 (filed 2 May 2017) (ordered published 28 June 2017)

    HOLDING: Applying due-weight deference in an administrative appeal, the court of appeals held that the Wisconsin Equal Rights Division (ERD) reasonably determined that a state agency’s human resources director was not a “supervisor” of the employee under the whistleblower statute.

    SUMMARY: The petitioner, a state Department of Criminal Investigation (DCI) agent, tangled with the special agent in charge (SAC) of his field office. In an email, he informed both the DCI administrator and the human resources director that the SAC was violating federal and state gun laws.

    The petitioner himself was eventually terminated for a long list of violations. He then filed a series of complaints with the ERD. An administrative law judge determined that the petitioner was not subject to whistleblower protection because he had simultaneously disclosed the SAC’s alleged law-breaking to someone – the HR director – outside his supervisory chain of command. The circuit court reversed, applying a de novo standard of review and concluding that the HR director was in the chain of command.

    The court of appeals reversed the circuit court in an opinion authored by Judge Hruz. First, the court applied the intermediate due-weight level of deference to the ERD’s interpretation of the term “supervisor.” Courts will not overturn a reasonable agency decision that comports with the statute’s purpose unless there is a more reasonable interpretation (see ¶ 33). Second, the term “supervisor” was left undefined in the Whistleblower Protection Act and long interpreted by the ERD as a person within the employee’s supervisory chain of command. The court was not convinced that the trial judge’s interpretation was a more reasonable construction or that the ERD’s was unreasonable (see ¶ 40). 


    Medical Records – Authentication – Hearsay

    Gaethke v. Pozder, 2017 WI App 38 (filed 17 May 2017) (ordered published 28 June 2017)

    HOLDING: The trial court properly admitted medical records to prove the plaintiff’s damages, and sufficient evidence supported the plaintiff’s claim of a safe place violation.

    SUMMARY: The plaintiff seriously injured his leg when he slipped on an icy sidewalk while walking to his hotel room. The trial court admitted medical records of the plaintiff’s treatment, and the jury found that the hotel was negligent and had also violated the safe place statute.

    The court of appeals affirmed in an opinion authored by Judge Gundrum. First, applying a “complete failure of proof standard,” the court held that sufficient evidence supported the safe place violation, including circumstantial evidence of the hotel’s constructive notice of the slippery conditions. Second, the plaintiff’s medical records were properly authenticated both by their content and by the plaintiff’s testimony, despite the absence of certification by the record custodian or notice of inspection to opposing counsel (see ¶ 27).

    Third, the medical records were properly admitted under the residual hearsay exception (Wis. Stat. § 908.03(24)) (see ¶ 29). Fourth, regardless of whether medical records meet the standard of Wis. Stat. section 908.03(6m)(b) – and these did not – the presumption of reasonable value in subsection (6m)(bm) nonetheless applies. No language in Wis. Stat. section 908.03(6m) forestalled this conclusion and the hotel’s argument against it was “conclusory and undeveloped” (¶ 32).

    Finally, the court rejected arguments that the plaintiff’s lawyer had engaged in “outrageous conduct” during closing argument. Notably, the hotel failed to include the transcript of the closing arguments in the appellate record.


    Prompt Payment of Claims – Interest Penalty

    Casper v. American Int’l S. Ins. Co., 2017 WI App 36 (filed 16 May 2017) (ordered published 28 June 2017)

    HOLDING: An insurer was given proper notice of the plaintiffs’ claims and was obligated to pay interest under Wis. Stat. section 628.46(1).

    SUMMARY: A tractor-trailer rear-ended a minivan, causing catastrophic injuries to its occupants. The truck was insured by American International South Insurance Co. The parties ultimately settled for the policy limits but the plaintiffs also moved for interest pursuant to Wis. Stat. section 628.46(1). The trial court granted summary judgment to the plaintiffs on this issue and awarded interest of more than $680,000.

    The court of appeals affirmed in an opinion, authored by Judge Brennan, that applies Wis. Stat. section 628.46 to the facts. Case law established that third-party liability claims, as here, are subject to the statute. Claimants need only produce “written notice of the fact of a covered loss” (¶ 18). Insurers may reject the claim if they possess “reasonable proof” that they are not obligated to pay.

    The claimants satisfied the statute. First, they presented a “sum certain amount of damages,” the court emphasizing that the itemized special damages here were nine times higher than the policy limits (¶ 28). Second, the claimants’ itemization of special damages and a demand letter provided written notice of both liability and damages (see ¶ 33).

    Third, there was “no question of the insured’s liability” in light of the truck driver’s deposition, despite some questions of contributory negligence (¶ 42). Fourth, claims of contributory negligence on these facts did not constitute “reasonable proof” that forestalled payment (¶ 47). Finally, case law clearly established the statute’s application in “multiple-insured situations” (¶ 51).  

    Military Law

    Wisconsin National Guard – Appeals from Military Court-martial Decisions

    State v. Riemer, 2017 WI App 48 (filed 15 June 2017) (ordered published 26 July 2017)

    HOLDINGS: 1) A claim that a military judge misused discretion in imposing sentence is to be reviewed using a deferential standard. 2) The military judge in this case did not impose an unduly harsh sentence. 3) Various due process claims of the appellant failed when analyzed under Wisconsin law.

    SUMMARY: At a general court-martial under the Wisconsin Code of Military Justice (Wis. Stat. chapter 322), Sergeant First Class Jesse Riemer of the Wisconsin Army National Guard was convicted, pursuant to negotiated pleas made before a military judge, of various felony offenses involving Riemer’s use of “his position as a [military] recruiter to engage in wrongful conduct with recruits and enlisted members of the [Wisconsin Army National Guard]” (¶ 1). Riemer was sentenced to 30 days’ confinement and a bad-conduct discharge. The adjutant general approved the conviction and sentence.

    Riemer appealed to the Wisconsin Court of Appeals pursuant to Wis. Stat. section 322.0675. This statute provides that convictions by a general court-martial are appealed “to the Wisconsin court of appeals, District IV and, if necessary, to the Wisconsin Supreme Court” (id.). This appears to be the first time such an appeal has been taken to the court of appeals (see ¶ 12).

    Riemer’s first appellate claim was that the military judge misused his discretion by imposing an unduly harsh and unreasonable sentence. He argued that the appellate court should review this issue – sentencing discretion – as would a military appellate court. That is, Riemer asserted that the court of appeals should accord no deference to the sentencing judge and, rather, independently determine whether the sentence was appropriate.

    In a decision authored by Judge Kloppenburg, the court rejected that argument and applied the same deferential review it normally applies to sentencing (see ¶ 2). When a defendant claims he or she has been given an unduly harsh sentence, appellate review is conducted using the erroneous exercise of discretion standard (see ¶ 32). In this case the military judge gave an adequate explanation of the sentence imposed. Among other things, he took into account the severity of the offenses (which involved misconduct with junior women soldiers), the need to protect other service members from similar misconduct, Reimer’s lack of remorse, and his having taken advantage of his position as a recruiter to prey on young people (see ¶ 36).

    The court also considered and rejected Riemer’s due process challenges in which he claimed that the military judge was objectively biased, failed to fully consider all evidence presented to him at sentencing, and assumed facts not supported by evidence available to him at sentencing (see ¶ 2). Riemer nominally contended that the state court of appeals should review his due process claims as would a military appellate court, but he did not suggest that such review differs from how the state appellate court would normally review these due process issues.

    “Indeed, Riemer directs us to Wisconsin due process case law on all three issues. If Wisconsin law differs from military law, or federal law generally, on these topics, the parties have not brought those differences to our attention. Accordingly, we follow the parties’ lead and apply Wisconsin due process law to the last three issues. If there is an argument that our review of any of these three issues should be based on federal law, we leave that question for another day” (¶ 3).

    Municipal Law

    Tax Incremental Financing – Taxpayer Standing to Seek Declaratory Judgment – Certiorari Review

    Voters with Facts v. City of Eau Claire, 2017 WI App 35 (filed 31 May 2017) (ordered published 28 June 2017)

    HOLDINGS: 1) The plaintiffs lacked taxpayer standing to bring a declaratory-judgment challenge to resolutions creating and amending tax incremental financing districts. 2) Declaratory judgment is not the appropriate method by which to challenge a municipality’s factual findings required for creating or amending a tax incremental district.

    SUMMARY: Voters with Facts (Voters) is “an unincorporated association of grassroots citizen volunteers and [local] taxpayers who question the propriety” of developments approved in two tax incremental financing districts in the city of Eau Claire (¶ 10). Together with other plaintiffs, Voters brought an action against the city of Eau Claire and the city of Eau Claire Review Board seeking a judgment declaring unlawful and void two resolutions, one of which amended an existing tax incremental district (TID) and the other of which created a new TID. Voters also pleaded a claim for certiorari review as an alternative to its declaratory-judgment claims.

    The circuit court dismissed the claims for a variety of reasons, including a lack of taxpayer standing by Voters to seek declaratory relief. In an opinion authored by Judge Hruz, the court of appeals affirmed in part and reversed in part the circuit court.

    The court of appeals agreed with the circuit court that Voters lacks taxpayer standing to seek a declaratory judgment that Eau Claire acted unlawfully, either under its statutory authority or from a constitutional standpoint, in amending one of the existing TIDs and in creating a new TID.

    “Voters’ complaint demonstrates Eau Claire made the required statutory findings when taking those actions [i.e., that the areas involved in the TIDs were blighted and that the developments would not occur in the absence of the TIDs], and the complaint therefore fails to allege noncompliance with any statutory directives. Meanwhile, Voters’ fear that City payments to a developer might be improperly diverted to reimburse the developer for the demolition of historic buildings is based on speculation, and that claim therefore fails to allege a concrete harm” (¶ 2).

    “Finally, Voters’ complaint fails to sufficiently allege a violation of the Wisconsin Constitution, on the basis of either uniformity clause principles or the public purpose doctrine. Because Voters’ complaint fails to adequately allege Eau Claire acted ‘unlawfully’ in any way, Voters lacks taxpayer standing to challenge the relevant municipal acts through a declaratory judgment action. We therefore affirm the dismissal of Voters’ declaratory judgment claims” (id.).

    The court of appeals also concluded that “declaratory judgment is not an appropriate method by which to challenge the municipality’s factual findings required for amending/creating the relevant TIDs – in particular, the City’s finding that a sufficient area of the TIDs was blighted, as well as the Review Board’s ‘but for’ determination that the development would not occur in the absence of the TIDs. Rather, the validity or ‘truthfulness’ of a municipality’s findings when forming a TID is reviewable by certiorari, using the standards applicable to such a review” (¶ 3).

    Voters pleaded a claim for certiorari review as an alternative to its declaratory-judgment claims. The circuit court dismissed that claim as well but without explanation. The court of appeals thus remanded this case to the circuit court for further proceedings on Voters’ sole remaining claim for certiorari review, which encompasses allegations that Eau Claire lacked substantial evidence to make the “blight” and “but for” determinations necessary to create or amend the TIDs at issue, and that those actions were done arbitrarily (¶ 60).

    Real Property

    Restrictive Covenants – “Commercial Activity”

    Forshee v. Neuschwander, 2017 WI App 43 (filed 13 June 2017) (ordered published 26 July 2017)

    HOLDING: A provision in a restrictive covenant prohibiting “commercial activity” on the defendants’ property is ambiguous and therefore cannot be enforced.

    SUMMARY: The defendants own a single-family waterfront residence in Hayward. The plaintiffs are their neighbors who own property adjacent to or near the defendants’ property. All the properties are subject to a restrictive covenant that provides inter alia that “there shall be no commercial activity allowed on any of said lots.”

    In 2014, the defendants began renting out their property for minimum stays of 2-7 nights for a maximum of 15 overnight guests. During 2015, they rented their property to more than 170 people, receiving more than $55,000 in rent. In 2016, the plaintiff neighbors filed this lawsuit seeking an injunction prohibiting the defendants from using their property as a vacation rental, which they claimed violated the “no commercial activity” provision of the controlling restrictive covenant.

    The circuit court granted summary judgment to the plaintiffs and enjoined the defendants from renting out their property on a short-term basis. In a decision authored by Judge Stark, the court of appeals reversed.

    The issue in the case was whether the short-term rentals of the defendants’ property was “commercial activity” as prohibited in the restrictive covenant. The appellate court began its analysis by noting that Wisconsin’s public policy favors the free and unrestricted use of property and that, to be enforceable, deed restrictions must be expressed in clear, unambiguous, and peremptory terms (¶ 9).

    “A restrictive covenant is ambiguous if its language is susceptible to more than one reasonable interpretation. However, if the intent of a restrictive covenant can be clearly ascertained from the covenant itself, the restrictions will be enforced. In this context, ‘intent’ does not mean the subjective intent of the drafter, but rather ‘the scope and purpose of the covenant as manifest by the language used’” (¶ 10) (internal quotations and citations omitted).

    In this case the appellate court concluded that the term “commercial activity” is ambiguous. Dictionary definitions of the words “commercial” and “commerce” suggest that the restrictive covenant prohibits the defendants from engaging in activity on their lot that is concerned with the activity of buying and selling, or activity by which they make or intend to make a profit (see ¶ 11).

    The court believed that reasonable minds could differ as to whether the short-term rentals meet this standard. On the one hand, the defendants intended to make money through the rentals and were engaged in selling to tenants the right to use their property (see ¶ 12). On the other hand, the actual use of the property is residential in character, that is, the tenants use the property as a dwelling.

    “Moreover, the restrictive covenant specifically prohibits commercial activity ‘on’ the [defendants’] lot. There is no evidence that any actual exchange of money occurs ‘on’ the [defendants’] lot, or that the [defendants] use the lot as an office space to manage or promote their short-term rentals. No goods are purchased or sold ‘on’ the property…. The commercial activity of elsewhere purchasing the residential use of the property does not render the actual activity ‘on’ the property commercial” (¶ 13).

    Accordingly, because the restrictive covenant is ambiguous, the circuit court erred in concluding that the defendants’ short-term rentals violated the covenant.

    Landfills – Local Zoning – Preemption

    Scenic Pit LLC v. Village of Richfield, 2017 WI App 49 (filed 28 June 2017) (ordered published 26 July 2017)

    HOLDING: State statutes govern landfill regulations; landfills are exempt from local zoning and permitting requirements.

    SUMMARY: Scenic Pit LLC sought to operate a solid waste facility on property in the village of Richfield. Essentially, Scenic Pit sought to fill an abandoned gravel pit with clean waste. Local zoning ordinances prohibited the use, and the village denied the construction permits. The Wisconsin Department of Natural Resources did grant the permits required by state law. In the ensuing lawsuit, the circuit court granted summary judgment for the village.

    The court of appeals reversed in an opinion, authored by Judge Hagedorn, that reviews Wisconsin’s solid waste regulatory scheme. Case law construes the statutes as eliminating the need for local approval; the state scheme controls (see ¶ 11). The controlling case “remains authoritative and unmodified. Local approvals required to construct such a facility … are preempted and no longer required for exempt clean fill facilities” (¶ 19). The preemption extended to storm water and erosion regulations (see ¶ 29).

    Sexually Violent Persons Law

    Placement of Sexually Violent Person Outside Person’s Home County – Procedural Requirements

    State v. McGee, 2017 WI App 39 (filed 17 May 2017) (ordered published 28 June 2017)

    HOLDING: The Racine County Circuit Court erroneously exercised its discretion when it approved the placement of a sexually violent person in a county other than the county of the person’s residence.

    SUMMARY: Wisconsin’s Sexually Violent Persons Law (Wis. Stat. chapter 980) requires that a sexually violent person who is suitable for supervised release be placed back into his or her county of residence unless “good cause” is shown to place him or her in another county. In this case, respondent McGee was a Racine County resident. When he was determined to be suitable for release into the community, a Racine County circuit court judge (the Racine County Circuit Court), the Wisconsin Department of Health Services (DHS), and the Racine County district attorney all agreed in June 2015, without an evidentiary hearing, that there was no suitable residence for McGee in all of Racine County because zoning ordinances throughout Racine prohibited the placement of sexually violent persons.

    Ultimately, in May 2016, the Racine County Circuit Court approved a plan to place McGee in Kenosha County. Kenosha County immediately moved to intervene and stay enforcement of the release plan on grounds that it did not receive statutory notice nor was it allowed the statutory right to participate in McGee’s supervised release plan. Ultimately the Racine County Circuit Court denied a stay of enforcement and concluded that the plan to place McGee in Kenosha County was appropriate. Kenosha County appealed.

    In a decision authored by Judge Reilly, the court of appeals affirmed the circuit court decision allowing Kenosha County to intervene (see ¶¶ 22-24); however, it reversed the circuit court’s approval of the supervised release plan for noncompliance with statutory requirements governing the placement of a sexually violent person outside of the committing court’s county.

    To begin with, in 2015 Wis. Act 156 (effective on March 2, 2016), the legislature amended Wis. Stat. chapter 980 to prohibit a court from making a finding of “good cause” to place a released chapter 980 offender in another county based on local zoning ordinances related to sexually violent persons (see ¶ 7). The local ordinances in Racine County were thus no longer grounds for finding “good cause” when the court approved McGee’s supervised release. The court of appeals therefore concluded that the circuit court erroneously exercised its discretion in finding “good cause” for placement outside Racine County (see ¶ 12).

    The appellate court went on to explain that “[i]n the event a court does have good cause to select a different county from a sexually violent person’s county of residence, the court and DHS are obligated to involve the county of intended placement, its law enforcement, the local government where the proposed placement exists, and others in the preparation of the supervised release plan. Wis. Stat. § 980.08(4)(d)-(f)” (¶ 13). 

    “The court, before approving any supervised release plan that places a sexually violent person outside of the committing county, must notify the district attorney, the law enforcement agency, and the local governmental unit ‘in the county of intended placement’ of the prospective placement of the specific sexually violent person and allow those entities to submit prospective residential options for community placement to DHS within sixty days following the court’s selection of the county. Sec. 980.08(4)(d). The committing court is also required to involve the intended county’s department that oversees mental health with an order to prepare a report, either independently or with DHS, ‘identifying prospective residential options for community placement.’ Sec. 980.08(4)(e)” (id.).

    Because the DHS and the circuit court failed to comply with statutory notice requirements in this case, the court of appeals concluded that the circuit court erroneously exercised its discretion in approving the supervised release plan (see ¶ 17).


    Releases – 72-hour Rule

    Hart v. Artisan & Truckers Cas. Co., 2017 WI App 45 (filed 13 June 2017) (ordered published 26 July 2017)

    HOLDING: A full release of claims signed on the day of the accident was valid and did not contravene Wis. Stat. section 904.12.

    SUMMARY: The plaintiff was injured by the defendant, who was at fault in the accident. That same day the plaintiff signed a full release of claims. She later filed suit, alleging that the release was invalid under Wis. Stat. section 904.12 because it was made within 72 hours after the accident. The circuit court granted summary judgment in favor of the insurer and its insured (defendant).

    The court of appeals affirmed in an opinion authored by Judge Brennan. Wisconsin law has long provided that statements or writings signed by an injured party within 72 hours after an accident are inadmissible. See Wis. Stat. § 904.12. A 1915 case “concluded that the legislature did not intend the prohibition on such writings to apply to a release of claims” (¶ 8). See Buckland v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 160 Wis. 484, 486, 152 N.W. 289 (1915). The venerable case remains good law. The court rejected the plaintiff’s multiple arguments against applying the older case to the current statute, especially because the legislature has not changed the statute’s language since 1915 (see ¶ 23).

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