The Wisconsin Supreme Court issued 59 decisions in its 2017-18 term, 32 civil cases and 27 criminal cases. Eight of these decisions were unanimous without concurring or dissenting opinions and nine more had concurring opinions but no dissents. Some of the decisions issued by the court have no majority opinion, instead consisting of a lead opinion joined by two or fewer other justices, along with concurrences and dissenting opinions. There were fewer such decisions this past term compared to the 2016-17 term.¹ The supreme court overruled prior supreme court cases three times this term.²

The supreme court’s civil cases this term covered a wide variety of topics including property taxation, eminent domain, recreational immunity, vested rights in zoning classifications, employment law (including anti-solicitation covenants³), real property, insurance, foreclosure, malpractice damages caps, and the Wisconsin Fair Dealership Law. Of its criminal cases, 15 percent of the court’s decisions relate to the Fourth Amendment and others included ineffective assistance of counsel, Fifth Amendment, sentencing and pleas,⁴ due process, and evidentiary issues including expert testimony and “other acts” evidence.

In the authors’ view, the 10 cases described below represent some of the most significant Wisconsin Supreme Court decisions from the 2017-18 term.

CIVIL CASES

Academic Freedom in Blog Post and Internal University Disciplinary Process

McAdams v. Marquette University.⁵ It is not unusual for a blog or website post to quickly go viral once it starts gaining attention and being recirculated. In 2014, Marquette University and John McAdams, one of its professors, found themselves in the middle of a viral firestorm regarding a blog post on the professor’s website.

The blog post that gave rise to the dispute appeared on McAdams’ personal blog on Nov. 9, 2014. In it, he criticized another Marquette instructor by name for her out-of-class exchange with a student in her theory of ethics class. The student approached the instructor after class to take issue with the instructor’s position that certain topics are settled and there is no need to discuss them in class. The student told the instructor he believed that one of those topics, “gay rights,” should be open for classroom discussion. The instructor replied that some opinions are not appropriate and she would take offense if the student had certain opinions on subjects, and she invited the student to drop the class.

The student shared this information, including a recording of the exchange, with McAdams. McAdams then posted his blog post recounting this exchange and identifying the instructor by name, providing a link to her website. He criticized the instructor because, in his view, she squelched open classroom discussion and took the view that opinions with which she disagreed are not merely wrong but are not to be argued on their merits and are deemed offensive. He described this approach as “totalitarian.” After the blog post appeared, the instructor received an email criticizing her conduct discussed in the post and she made a formal complaint to Marquette against McAdams. The instructor later received strongly worded and offensive communications such as emails, blog posts, and letters from third parties, including some that expressed violent thoughts. Most of the negative feedback occurred after the story spread beyond the blog post.⁶

One month after the blog post first appeared, Marquette suspended McAdams with pay, and the university notified him that it intended to revoke his tenure and terminate his employment. A faculty hearing committee (FHC) held a four-day hearing at which evidence was presented. The FHC recommended that McAdams be suspended without pay, with benefits, for one to two semesters, but found that the conduct was not sufficiently egregious or grave to justify dismissal. The university president then issued a letter conveying his decision to suspend McAdams for nine months, and as a condition of reinstatement, requiring McAdams to write a letter acknowledging that his conduct was improper and caused harm to the instructor and accepting the punishment.

McAdams refused to write the letter and he sued Marquette for breach of contract, claiming the suspension violated his contract. McAdams, a tenured professor, has a contract that provides that he cannot be disciplined on the basis of activity protected by the doctrine of academic freedom or the U.S. Constitution. He claimed that his suspension breached this contract. Marquette argued that McAdams did not have the right to litigate this claim in court and asked the courts to defer to Marquette’s internal disciplinary procedure for suspending and dismissing tenured faculty.⁷

McAdams sought damages, an injunction requiring reinstatement, costs, and attorney fees. The parties filed cross-motions for summary judgment, and the court ruled in favor of Marquette, dismissing the complaint. The circuit court held that it must defer to the university’s resolution of McAdams’ discipline and that the FHC report and the president’s suspension letter deserved deference. The court held that the internal dispute resolution process afforded sufficient due process, that McAdams agreed to the process by contract, and that the outcome should receive deference akin to that given to administrative agencies or to arbitration decisions.⁸ McAdams appealed, and the supreme court accepted the appeal on bypass.

The supreme court reasoned that the only dispute before it was the proper interpretation of McAdams’ contract. The court first considered what, if any, deference it would afford to the Marquette hearing process. For several reasons, the court held that it would not defer to the results of the internal discipline process.⁹

The court held that litigants must be given their day in court, and access to the courts is an essential ingredient of the constitutional guarantee of due process. It also declined to defer to the university’s internal disciplinary process because the parties never agreed the process was binding or that it would replace or limit adjudication of the contract dispute in court. In fact, the parties’ contract acknowledged that a suspension or dismissal could be reviewed by a court and the university would honor a court judgment. Also, the parties did not agree to arbitration or other extrajudicial resolution. Although the parties agreed to submit disciplinary disputes to the internal university procedure and fully complete that procedure before filing suit in court, the contract did not provide the internal procedure was binding.¹⁰

The supreme court rejected the argument that the FHC’s report and the president’s disciplinary letter should be analogized and deferred to as an arbitration decision. The process did not bear the same procedural reliability and standards attendant to arbitration. The FHC process was open-ended and advisory, without authority to bind the parties. Further, there were no procedures governing the president’s ultimate discipline decision and he had unfettered discretion.

Moreover, the FHC was not an “impartial tribunal” and was “compositionally biased” because one FHC member joined an open letter publicly rebuking McAdams and she refused to recuse herself from the FHC. The court held that under any reasonable standard of impartiality, that member would be disqualified because she publicly inserted herself into the dispute and expressed a personal interest in its outcome, in writing.¹¹

The court also noted that Wisconsin courts may no longer defer to administrative agencies on conclusions of law. (See the discussion of Tetra Tech, below). Thus, there is no basis to apply administrative-type deference to private disputes: “We decided the practice was unsound in principle, and there is no apparent reason it would become sounder if we resurrected it for use in contract disputes between two private parties.” Further, the court would not afford deference to the university’s disciplinary determination, since the president’s decision was governed by no procedural requirements or standards.¹²

The court also declined to defer to the university disciplinary hearing process, holding that to do so would essentially “demote tenure from a substantive right to a matter of mere procedure.” The court also rejected the argument that deference is necessary because determination of the contract claim requires consideration of the standards of professional duties and professorial fitness. The complexity of those issues is not an impediment to substantive court review, and if the issue is beyond the realm of a layperson, the parties may provide expert testimony.¹³

The court declined to defer to the university’s disciplinary process because under that process the FHC’s recommendation is merely advisory, no procedural standards govern the president’s decision, and the parties’ contract acknowledges that such decision may be reviewed by a court and the university will abide by the court’s ruling. The university and its faculty members agreed to that process. The court explained: “It is not our place to rewrite their management structure to give the faculty a more broad muscular rule in the university’s affairs than they currently have.”¹⁴

On the merits, the court considered whether Marquette breached its contract by suspending McAdams for exercising his contractually protected right of academic freedom. The parties’ contract provides that discretionary causes for suspending a professor cannot include activity encompassed by the doctrine of academic freedom, and dismissal cannot be used to restrain faculty members in their exercise of academic freedom or other rights guaranteed by the U.S. Constitution. The discipline letter provided that McAdams was being sanctioned for his blog post. The doctrine of academic freedom covers teaching, research, and extramural comments. The parties agreed that the blog post was an extramural comment.¹⁵

Academic freedom may be lost, and an instructor disciplined for extramural comments, only if two elements are established. First, the extramural comment must clearly demonstrate the faculty member’s unfitness for his or her position. If the comment meets that standard, the second element considers the broader context of the faculty member’s complete record before deciding whether the extramural comment is protected by academic freedom. This step takes into account the professor’s entire record as a teacher and scholar. The second step is not reached if unfitness is not proven. “Only if the balance clearly tips to ‘unfitness’ would the University then proceed to a comprehensive review of Dr. McAdams’ career.”¹⁶

The FHC process focused on the relationship between the comments in the blog post and the professor’s fitness. However, in court, the university argued that the steps should be combined and that McAdams’ comments demonstrated his unfitness for his position considering his entire record as a teacher and scholar. The court rejected this approach. If the court applied the analysis favored by the university, “academic freedom would be nothing but a subjective, post-hoc analysis of what the institution might find unacceptable after watching how events unfolded. And this would likely chill extramural comments to the point of extinction. It would be a fearless professor indeed who would risk such a comment, knowing that it licenses the University to scrutinize his entire career and assay it against the care of ‘all aspects of the lives of the members of the institution.’”¹⁷

The university also argued that academic freedom is just one value that must be balanced against other values pertinent to its mission, including obligations to take care of others, not to cause harm to community members, and to respect the dignity of others. The court said these are insufficiently certain standards by which a professor’s compliance may be measured. “Setting the doctrine of academic freedom adrift amongst these competing values would deprive the doctrine of its instructive power; it would provide faculty members with little to no guidance on what it covers.”¹⁸

The university argued that unfitness could be found based on the harm caused by the blog post, from the republication of the story, and the reaction of third parties to it. The court rejected this approach as a backwards analysis, done with the benefit of hindsight, to determine unfitness because of the reactions of unknown third parties to the blog post after the story received national attention. On the other hand, “[p]erforming the analysis in the correct direction leads to the unavoidable conclusion that the blog post has nothing relevant to say about Dr. McAdams’ fitness as a professor.”¹⁹

The university did not identify any particular way in which the blog post violated McAdams’ responsibilities. The blog post did not make ad hominem attacks on the instructor, invite readers to be uncivil to her, or instigate or invite vile responses. There was no prohibition against naming a student in a blog or linking to the student’s webpage and no requirement that professors ensure every statement is accurate. The court also rejected the argument that the blog post relied on improperly obtained information (surreptitious recording by the student of the conversation), reasoning that McAdams did not instigate that recording and there was no rule forbidding making it, listening to it, or distributing it.²⁰

The court held that the blog post qualified as an extramural comment protected by the doctrine of academic freedom, and the post was incapable of clearly demonstrating McAdams is unfit to serve as a professor. Therefore, the court held, the blog post “retains the protection it presumptively enjoyed as an extramural comment.” The court also rejected the suggestion by the dissent that the university should be given its own academic freedom to govern its faculty members free from interference of the courts, explaining that “a university’s academic freedom is a shield against governmental interference; the dissent, however, would reforge it as a sword with which to strike down contracts it no longer wishes to honor.”²¹

Because the blog post was protected by the doctrine of academic freedom and such protection was not lost, the university had no justifiable cause to suspend McAdams, affirm the suspension, or increase the discipline. Because the suspension breached the contract, the court held that it must end. It also barred the university from enforcing any of the reinstatement conditions identified in the discipline letter. The court ordered the university to reinstate McAdams with unimpaired tenure, compensation, and benefits and held that judgment shall be entered in his favor on the breach of contract claim, for immediate reinstatement, and for damages, including back pay.²²

Elimination of Deference to Administrative Agencies’ Conclusions of Law

Tetra Tech EC Inc. v. Wisconsin Dep’t of Revenue.²³ Some Wisconsin Supreme Court justices have expressed consternation with the concept of judicial deference to statutory interpretations and conclusions of law of administrative agencies, troubled, among other things, with the fact that this seemingly required the judiciary to cede its power to interpret statutes to the executive branch (agencies).²⁴ In May 2017, a concurring opinion questioned whether the court’s “practice of deferring to agency interpretations of statutes comports with the Wisconsin Constitution, which vests judicial power in this court – not administrative agencies” and “urge[d] the court to reconsider its decades-long abdication of this core judicial function.”²⁵

The court decided that issue this term in Tetra Tech, a tax case challenging the Department of Revenue’s (DOR’s) interpretation of a tax statute. Examining in detail the history and practice of judicial deference to agency determinations of questions of law, the court held: “We have … decided to end our practice of deferring to administrative agencies’ conclusions of law. … However, pursuant to Wis. Stat. § 227.57(10), we will give ‘due weight’ to the experience, technical competence, and specialized knowledge of an administrative agency as we consider its arguments.”²⁶ Tetra Tech overruled Harnischfeger Corp. v. LIRC,²⁷ in which the court held that the standard of review of agency legal determinations is great-weight deference.

Courts generally review administrative agency decisions pursuant to Wis. Stat. chapter 227, which requires the courts to set aside or modify an agency’s action if it erroneously interpreted the law and a correct interpretation compels a particular action. And it further provides that “due weight shall be accorded the experience, technical competence, and specialized knowledge of the agency involved, as well as discretionary authority conferred upon it.”²⁸

Harnischfeger ushered in the development of the three-tier standard of review for administrative agency decisions (great-weight, due-weight, or no-weight deference). Under Harnischfeger, great-weight deference was given to interpretations of a statute when 1) the agency was charged with administering the statute; 2) the agency’s interpretation is long-standing; 3) the agency employed its expertise or specialized knowledge; and 4) the agency’s interpretation will provide consistency and uniformity in the statute’s application. Under great-weight deference, courts were required to adopt the agency’s interpretation so long as it was reasonable, that is, so long as it was not conflicting with the statute’s words or legislative intent and it had a rational basis. Deference was required even when the court had a more reasonable interpretation.²⁹

The courts took a different approach to review of agency interpretations until the Harnischfeger test was adopted in 1995. In 1963, the court “imported the concept of deference” to administrative agencies’ statutory interpretations, noting that federal courts do so. In areas of agency competence and expertise, courts should not substitute their judgment for an agency’s application of a statute to facts if a rational basis existed for the interpretation and it did not conflict with law. In 1979, the court extended deference to agency constructions of statutes, not simply applications of statutes to facts. The court would hesitate to substitute its judgment for the agency if there was a rational basis for the agency’s interpretation and it did not conflict with the law. Until Harnischfeger was decided in 1995, the court treated deference as a “choice.” Cases after Harnischfeger made clear that the deference doctrine was “mandatory.”³⁰

Under the due-weight standard of review, deference would be given to the agency’s application of law to fact and to legal conclusions as well. Deference was applied under that standard if the agency has particular competence or expertise in the subject.³¹ Under the due-weight level of review, deference is appropriate when the statute is one that the agency is charged with administering, and the agency has some experience in an area, but not the expertise placing it in a better position than the court. The fact that the agency’s interpretation was reasonable does not mean that it would be upheld, and the court could adopt a more reasonable interpretation. The lowest level of deference is “no weight.” In that category, the court merely benefitted from the agency’s determination and could reverse the agency even when both interpretations are equally reasonable. This is the same method the court uses when reviewing questions of law decided by the circuit court and the court of appeals.³²

In Tetra Tech, the court announced its decision to abandon the Harnischfeger deference rule. The court explained: “Today, the core judicial power ceded by our deference doctrine returns to its constitutionally-assigned residence. Henceforth, we will review an administrative agency’s conclusions of law under the same standard we apply to a circuit court’s conclusions of law – de novo. … As with judicial opinions, we will benefit from the administrative agency’s analysis, particularly when they are supplemented by the ‘due weight’ considerations discussed above. … We created our deference doctrine ex nihilo, and so it is within our power to end it simply by declaring it at an end. Some members of the court prefer that option – discard the doctrine not because the constitutional problems require its abandonment, but merely because we have chosen to drop it.”³³

A majority of the court agreed to “leav[e] our deference doctrine behind because it is unsound in principle. It does not respect the separation of powers, gives insufficient consideration to the parties’ due process interest in a neutral and independent judiciary, and ‘risks perpetuating erroneous declarations of the law.’”

However, a majority could not agree on the rationale for this holding. Some justices raised concern with the effect of the new rule on prior court decisions applying the old standard of deference, both the finality of judgments and the precedential value of appellate decisions that deferred to agencies under the “now-discarded deference doctrine.” The majority held that final judgments cannot be vacated based on the change in law, and the prior court of appeals decisions still stand, as the courts adopted agency interpretations as their own. The precedential and controlling effect of the decision would be the same as if the court had based the decision on its own interpretation.³⁴

The court then turned to the interpretation of the tax statute in Tetra Tech. The facts were undisputed concerning the river-dredging services at issue, and the only question was whether they constitute “processing,” and were therefore taxable, a pure question of law. The court independently interpreted the statute, Wis. Stat. section 77.52(2)(a)11. The court concluded that processing “encompasses the performance of a mechanical or chemical operation on tangible personal property, a task that can be completed without transforming the property into a new product, or adding anything to it that was not already there.” Applying this definition, the court held that processing encompassed the taxpayer’s separation of river sediment into its constituent parts.³⁵

The court gave “little weight” to the Tax Appeals Commission’s understanding of the term processing. There was no indication the commission had a long-standing interpretation of the meaning of processing and the commission did not use any particular experience, technical competence, or specialized knowledge to develop an understanding of the term. Consequently, due weight under Wis. Stat. section 227.57(10) did not increase the persuasiveness of the commission’s conclusions of law.³⁶

The court applied Tetra Tech in two other cases issued the same day. In Wisconsin Bell Inc. v. LIRC,³⁷ the court interpreted Wis. Stat. section 111.322(1) independently from the interpretation of the Labor and Industry Review Commission (LIRC), regarding the proof required to prove discriminatory intent. The court rejected LIRC’s “inference method” of proving intent, because it was inconsistent with the plain language of the statute and excused employees from proving discriminatory intent.

In Wisconsin Dept. of Workforce Development v. LIRC,³⁸ the court considered whether an employee is barred from recovering unemployment compensation benefits if terminated for absenteeism under employer rules that are stricter than the definition of misconduct for absenteeism under Wis. Stat. section 108.04(5)(e). Applying Tetra Tech, the court held: “It is the province and duty of the judiciary to say what the law is. Because we determine that the LIRC based its order on an incorrect interpretation of § 108.04(5)(e), we conclude that LIRC acted without or in excess of its powers.” The court rejected LIRC’s interpretation as contrary to the statute’s plain language, which plainly allows an employer to adopt its own attendance policy that differs from (that is, is stricter than) the statute.

Public Records Request Concerning Voters in Union Certification Election

Madison Teachers Inc. v. Scott.³⁹ The Wisconsin Legislature’s enactment of 2011 Wis. Act 10 significantly altered the state’s public employee labor laws, spawning litigation in state and federal courts, including a decision by the supreme court ruling Act 10 constitutional in July 2014.

Before Act 10, members of collective bargaining units were allowed to select a labor organization as their representative when a majority of the votes cast were for the organization, even when those votes were not equivalent to the majority of the employees in the unit. The elected union remained the representative unless 30 percent of members of the unit asked for a decertification election at which the union was defeated. Act 10 changed this, requiring a labor organization representing a municipal bargaining unit to succeed in annual certification elections to remain as representative. A representative would be certified if it received at least 51 percent of the votes of all employees in the unit. Accordingly, a nonvote would effectively constitute a “no” vote. If no labor organization received the votes of 51 percent of all unit employees, then the collective bargaining agreement ended and the members of the unit became unrepresented.⁴⁰

Annual certification elections are administered by the Wisconsin Employment Relations Commission (WERC). Scott arose from an annual certification election for collective bargaining representatives of the employees of the Madison Metropolitan School District. WERC oversaw the election, and it contracted with the American Arbitration Association (AAA) to provide technological services for the election. Voting occurred by telephone and the internet, and the AAA maintained data for the votes that were cast.⁴¹

Madison Teachers Inc. (MTI) made several requests during the voting period for the names of district employees who voted in the election. MTI stated that it would not engage in voter coercion or any other illegal election practices. WERC chairman Scott denied the requests for three reasons: WERC did not possess the requested documents; the election was by secret ballot and disclosure of voting employees would violate the secrecy of the ballot; and the common-law balancing test weighed in favor of maintaining the secrecy of the ballot and of avoiding the potential for voter coercion while the voting was ongoing. MTI requested the names again on the day voting concluded. WERC provided those names the next day. MTI filed a public records mandamus action on Nov. 30, 2015, seeking damages and attorney fees based on the earlier refusals to release the records.⁴²

The parties filed summary-judgment motions concerning the denials of the public records requests for the names. The court granted MTI’s motion, holding that the denials were improper and the grounds stated did not overcome the presumption in favor of openness. The court also awarded attorney fees, costs, and statutory damages. Scott appealed, and the supreme court accepted the case on bypass. The court independently reviewed Scott’s decision to deny the public records requests.⁴³

Wisconsin has a presumption of open access to public records, giving the public the right to inspect documents within the possession of a state entity. However, the right to access documents within a state entity’s possession is not unrestricted. There are three bases for denial of access: 1) statutory exceptions, 2) common-law exceptions, and 3) denial when “there is an overriding public interest in keeping the public record confidential.” Access to records may be denied “only in limited circumstances.”

Under the third category, the record custodian balances the competing interests: the interest in nondisclosure against the interest in disclosure. This is a case-by-case determination whether the factual circumstances overcome the presumption of openness. The public-interest balancing test weighs “whether disclosure would cause public harm to the degree that the presumption of openness is overcome.”⁴⁴

Act 10 specifically prohibits employees from coercing or intimidating other employees in joining or refraining from joining a labor organization. Certification elections under Act 10 are conducted by secret ballot to lessen intimidation. The certification election in Scott was conducted by secret ballot. The secret ballot method is employed to limit voter intimidation during elections. Case law recognizes that the secret ballot has had an immediate and positive effect to limit voter intimidation and coercion.⁴⁵

The public interest in certification elections free from intimidation and coercion is evidenced by the requirement that the elections be by secret ballot. Scott had a concern about intimidation and coercion in the district election, as he received complaints of past coercion in other certification elections in southeastern Wisconsin, including a representative directing an employee to a computer and coercing her to vote, another employee being asked repeatedly if she voted, and other pressuring conduct.⁴⁶

MTI argued that its receipt of the names of the nonvoters would not violate the secret ballot because they could still vote during the election. The court rejected this argument, concluding that the names of all voters would affect the public interest underlying the use of secret ballots. Getting the list of all voters during the election would allow MTI to identify all bargaining unit members who had not yet voted and then individually target such persons most forcefully.⁴⁷

Given that the district’s certification election was by electronic ballot and by telephone, preventing voter coercion and intimidation would be more difficult than the traditional in-person voting at polling places. Voters could vote at work, from home, or from somewhere else. The court reasoned that prevention of voter intimidation during telephone and electronic voting is “challenging” since there are “no physical boundar[ies] by which voter intimidation can be regulated.” If the names of the voters are obtained during the election, the nonvoters could “become subject to individualized pressure by MTI of a type that MTI could not exert if it were speaking to all members of the bargaining unit collectively.”⁴⁸

The court upheld WERC’s denial of the names of voters during the certification election, concluding that “the public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open public records under the circumstances presented in the case before us. Scott’s denial of MTI’s requests for voter names during the course of the certification election evidences the lawful balance of public interests presented here.”⁴⁹

Taxpayer Challenge to City Approval of Tax Incremental Financing

Voters with Facts v. City of Eau Claire.⁵⁰ Public debate and objections to proposed real estate developments may arise where the municipality provides financial incentives such as tax incremental financing (TIF) to fund tax incremental districts (TID). Sometimes such disputes reach the courts. Voters with Facts is one example.

The case arose from Eau Claire’s approval of a redevelopment project that relied in part on funds derived from TIDs 8 and 10. Voters with Facts sued for a declaratory judgment and alternatively for common-law certiorari review concerning the city’s approval of the TIDs, arguing that the approvals were not proper under Wis. Stat. chapter 66. The circuit court dismissed the case, holding there was no standing to assert those claims. The court of appeals affirmed dismissal of the declaratory-judgment claims but reversed as to certiorari review, holding that the plaintiffs could seek such review in the circuit court.⁵¹

The expansion or creation of TIDs is limited to four purposes: addressing blighted areas, urban rehabilitation or conservation, industrial development, and promotion of mixed-used development. The Eau Claire project was premised on addressing blight. Under Wis. Stat. chapter 66, the city had to make a finding that 50 percent or more of the real property within the district is a “blighted area.” The TID also must be approved by a joint review board (JRB), which must find that the development would not occur “but for” the creation of the TID.⁵²

Eau Claire made the blight and the but-for findings for TIDs 8 and 10 and issued cash grants to the developer. However, Voters with Facts claimed that the findings were unsupported by the municipal record evidence and they were not factually correct. In addition, Voters with Facts argued that the city’s disbursement of cash grants to the developer for project costs was unlawful as an unconstitutional tax rebate under the Uniformity Clause of the Wisconsin Constitution or because the funds could be used to reimburse the developer for its already-incurred costs of demolishing historic buildings, contrary to Wis. Stat. chapter 66.⁵³

Because appellate courts decide issues on the narrowest possible grounds, the court declined to determine whether the plaintiffs had standing to pursue the claims, assuming standing, and instead limited its review to whether the declaratory-relief claims stated a claim upon which relief may be granted.⁵⁴

The first claim challenged the city’s determination that 50 percent or more of the property within the TID is a “blighted area,” a term defined by Wis. Stat. chapter 66. The complaint alleged that the city’s resolution concluding that 50 percent or more of TIDs 8 and 10 were blighted areas lacked a factual basis and the record contained no evidence. The complaint alleged that the TID areas were not actually “blighted” and such condition must actually exist before tax money can be diverted “for the benefit of private parties.” The plaintiffs argued that the courts are “more than capable of evaluating factual determinations” by municipal bodies and that where TIDs do not in fact work to eliminate blight, they “lack a public purpose and are unconstitutional.”⁵⁵

The Eau Claire resolution made the finding that 50 percent or more of the district area is blighted but did not state the facts underlying it. The court held that the statute does not require the city to “itemize the evidence” that supports its findings. Other blight-related statutes in Wis. Stat. chapter 66 similarly require only “findings” but do not require a specific rationale or itemization of evidence supporting them. Further, when the legislature requires itemized evidence to support municipal findings of blight, it specifically says so. For example, the eminent domain statutes (Wis. Stat. chapter 32) require findings of blight and a statement of the reasons for the findings.⁵⁶

Wisconsin Statutes chapter 66 defines blight as deleterious conditions of the property, which is detrimental to health, safety, morals, or welfare. This falls within the police power over municipal affairs. The court held that findings of blight are “legislative determinations that do not raise justiciable issues of fact or law. … This is because de novo review of a legislative determination violates the doctrine of separation of powers.” Accordingly, the court held that “a finding of blight under Wis. Stat. § 66.1105(4)(gm)4.a. is not susceptible to an action for declaratory judgment because, as a legislative determination, it does not give rise to justiciable issues of fact or law.” It explained that “a court cannot issue a declaration regarding the wisdom of a legislative determination.” Therefore, the claim challenging the “blight” finding failed to state a claim and was properly dismissed.⁵⁷

To create a TID, the city was required by statute to convene a JRB to make the “but-for” finding. The JRB must approve the TID resolution and must make the “positive assertion” that development “would not occur without the creation of a tax incremental district.” In their second claim, the plaintiffs challenged the “but-for” determination as to development of the properties in TIDs 8 and 10, arguing that it was unsupported by the city record and it was factually incorrect. The plaintiffs argued that the “but-for” conditions must actually be present to support a TID approval under the statute. The court held that the requirement of a “positive assertion” does not require itemized evidence underlying the conclusion. The positive assertion requires the but-for assertion as to the TID area as a whole, and it does not undercut the conclusion if portions of the TID area might otherwise be developed. As with the blight finding, a court cannot issue a declaration regarding the wisdom of this legislative determination, which does not present a justiciable question of fact or law.⁵⁸

Project costs that may be reimbursed through a TID include capital costs for construction and improvements and property demolition, except demolition of historically designated property. The plaintiffs’ third claim alleged that a substantial portion of the developer’s cost for the TID development was demolition of historical properties. The owner-developer would be paid a lump sum of $10.4 million from the city for project costs of the TIDs. The use of these funds was not restricted, so the developer theoretically could reimburse itself for demolition of historical properties.⁵⁹

The court held that these allegations failed to state a claim because they did not allege that the developer in fact used the money to pay for demolition of historic buildings or that it was likely to do so. Alleging a mere possibility that the cash could be so used did not state a claim. Similarly, the court held that the fourth claim, alleging violation of the Uniformity Clause, also failed. The plaintiffs alleged that the cash grants have the effect of providing the owner-developer a lower property tax rate, and the cash grants are “an unconstitutional tax rebate” because they effectively reimburse it for property taxes paid on the property. The court held that the plaintiffs did not allege that the cash grants were intended to reimburse owner-developers for their property taxes or that they in fact used the money to pay their property taxes or are likely to do so. At most, the statute does not exclude property taxes from “project costs” and therefore does not preclude the possibility that developers could use grants to pay property taxes.⁶⁰

After holding that all the declaratory-judgment claims were properly dismissed, the court held that the plaintiffs’ certiorari claim could proceed. The TID statutes have no statutory appeal process, so therefore the city’s action may be reviewed by common-law certiorari. The court held that the city approvals establishing the TIDs by virtue of those findings could be challenged in court by common-law certiorari action, holding that “certiorari review is the appropriate mechanism for a court to test the validity of a legislative determination.”⁶¹

Certiorari review is limited to the municipal record, and no additional evidence is taken. Review is limited to whether 1) the city kept within its jurisdiction; 2) the city proceeded on a correct theory of law; 3) its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and 4) evidence was such that the city could reasonably make the determination in question. On certiorari review the city’s determinations are presumed correct and valid. Therefore, certiorari review is quite limited and deference is afforded the city’s determinations. Given that, certiorari review is more difficult to successfully challenge the city’s determinations compared to claims for declaratory relief premised on noncompliance with the statutes.⁶²

Voters with Facts argued that certiorari review was insufficient because it does not involve discovery or other opportunities to assess the city’s findings of blight and but-for development. The city argued that certiorari review is the mechanism for testing the validity of a decision by a municipality and it is the standard for reviewing local legislative functions. The court agreed with the city and remanded for the claims to proceed pursuant to common-law certiorari review upon the filing of the municipal record.⁶³

Unjust Enrichment Claims for Cohabitating Persons

Sands v. Menard.⁶⁴ More than 30 years ago, in Watts v. Watts, the supreme court examined claims of unjust enrichment between cohabitating persons. In Watts, the court held that public policy does not preclude unmarried, former cohabitants from raising claims based on unjust enrichment after the termination of their relationship when one of the parties attempts to retain an unreasonable amount of the property acquired through the efforts of both.⁶⁵ In Sands, the court revisited this issue and provided guidance on the proof necessary to establish unjust enrichment in this context.

Debra Sands had a relationship with John Menard Jr., the founder, president, and CEO of Menard Inc. and they allegedly cohabitated from 1998 to 2006. Sands was a Minnesota lawyer who provided in-house legal services for Menard in Wisconsin. Sands alleged that she had a joint enterprise with Menard and claimed that she assisted Menard with entertaining, health care, home remodeling, acquiring assets, and developing, promoting, and expanding Menard Inc. She alleged that she assisted Menard in finding new business opportunities, helped create a private equity fund owned by Menard and a partner, and contributed legal services to Menard and his companies. She was paid for some of her services rendered to Menard Inc.

Sands alleged “they engaged in a ‘joint enterprise’ to work together and grow Menard’s businesses for their mutual benefit.” Sands claimed that in return for her contributions, she was repeatedly promised an ownership interest in Menard Inc. Menard denied any such promises. Menard had started his business nearly 40 years before the beginning of the relationship. They had been engaged, although Menard denied living with Sands.⁶⁶

The relationship ended in 2006. Sands sued Menard in 2008. Sands claimed she was entitled to judgment in an amount equal to the fair and reasonable share of the property, wealth, and increased net worth acquired by Menard during their cohabitation. This was a Watts-type unjust enrichment claim. Menard argued that the elements of unjust enrichment were not met. Further, he said that Sands failed to comply with SCR 20:1.8(a), which regulates business transactions between lawyers and their clients, and therefore was precluded from seeking an ownership interest in any of Menard’s business ventures. Menard also filed an amended counterclaim against Sands, claiming breach of fiduciary duty on the basis that Sands breached her duty of loyalty in the negotiation of the transaction with the fund, and that she had a side agreement with his partner.⁶⁷

A Watts-type unjust enrichment claim may exist if one party keeps all or most of the assets accumulated during a relationship while the other party was deprived of property she or he helped to accumulate, and it would be unjust to allow the other cohabitant to retain the entire benefit from the joint enterprise. The court explained that under the Watts standard, “the focus is the benefit received by one party from the other party which would be inequitable to retain.” The focus therefore is property accumulated, not the type of personal relationship that existed between the parties. “Stated otherwise, a claim for unjust enrichment may lie when two people work together to acquire property ‘through the efforts of both,’ regardless of their personal relationship.”⁶⁸

To plead facts to establish an unjust enrichment claim, the court said, Sands must demonstrate 1) a benefit conferred on Menard by Sands; 2) Menard’s appreciation or knowledge of the benefit; and 3) Menard’s acceptance or retention of assets arising from the benefit under circumstances making it inequitable for him to retain them all. “Sands’ unjust enrichment claim must demonstrate that, viewed in their entirety, the contributions she made to a joint enterprise in which she and Menard were mutually engaged resulted in an accumulation of wealth that Menard unfairly retained.” The court held that Sands failed to allege facts to establish that she and Menard had a “joint enterprise that included accumulation of assets in which both she and Menard expected to share equally” and that Menard unfairly retained the accumulated assets.⁶⁹

Sands did not establish that she helped Menard begin or grow his business or that through their joint efforts the value of his assets increased. When they met, he was a multimillionaire who had been in business for 40 years. Sands was a law school graduate operating several businesses with her sister in Minnesota. Although Menard’s net worth was substantially higher than Sands’, both parties had sufficient financial means and business acumen. Sands and Menard did not commingle finances, file joint tax returns, or make joint purchases of real or personal property. Sands did not obligate herself to any business or personal debt of Menard. Accordingly, Menard and Sands were not engaged in a “joint enterprise” as required by Watts.⁷⁰

The court applied the Watts three-part unjust enrichment test. First, although Sands made contributions to Menard’s business, the court could not conclude they were material “given Menard’s wealth and the success of his company when the parties met.” Sands asserted business transactions in which she participated or assisted, but there were no facts from which it could be concluded that her contributions caused an increase in Menard’s assets or property.⁷¹

There also was no basis to conclude that Menard’s acceptance of Sands’ contributions would be inequitable under the circumstances. Sands enjoyed an expansive lifestyle as the companion of a wealthy man and she was compensated for some of her services. The court found “not persuasive” Sands’ argument that Menard “repeatedly” promised her an ownership interest in Menard Inc. Therefore, the court held that Sands failed to allege facts to support the conclusion that she had a shared enterprise that included the accumulation of assets in which she and Menard expected to share equally.⁷²

As to Menard’s assertion that Sands violated SCR 20:1.8(a), the court held that the lower courts erred in holding that such alleged violation was a defense. The court reaffirmed Wisconsin law holding that violation of an attorney ethics rule does not give rise to a cause of action against a lawyer or create a presumption that a legal duty was breached. The rules are merely guidelines in civil litigation. The court held that the ethics rules also cannot be used as an absolute defense in a civil action in which a lawyer is a party. SCR 20:1.8(a) may be used to guide courts in determining the applicable standards of care. Additionally, Sands was not licensed in Wisconsin and did not practice law when she worked as an in-house counsel for Menard. Therefore, she was not subject to SCR 20:1.8(a).⁷³

Finally, the court affirmed the dismissal of Menard Inc.’s counterclaim for breach of fiduciary duty against Sands on statute-of-limitation grounds. Menard alleged Sands breached her fiduciary duty in the negotiation of the transaction with the fund. The court held that Menard knew or should have known, by the claim’s accrual date, that Sands’ loyalty was questionable. The court reasoned that Menard was a sophisticated businessman who had been involved in numerous business transactions individually and as CEO of Menard. The court noted that Menard had suspicions triggering the obligation to investigate further but that he did not raise a claim until 2011, years after Sands sued him in 2008.⁷⁴

CRIMINAL CASES

Voluntary Confession to a Serious Felony Does Not Automatically Transform a Suspect’s Status from Noncustodial to “In Custody”

State v. Bartelt.⁷⁵ As the court explained last term in State v. Harris, the Fifth Amendment privilege against self-incrimination “is called to duty whenever the State interrogates a suspect in police custody.” In Bartelt, the court considered whether the line between voluntary noncustodial appearance at the station house and “in custody” was crossed when an individual voluntarily came to the police station and had a discussion with police in which he confessed to a serious felony.

Daniel Bartelt was identified as a person of interest in a recent stabbing of a female jogger, M.R. Three days after the attack, Bartelt’s ex-girlfriend Jessie Blodgett was murdered. Police called to ask Bartelt to come in to the police station and discuss an incident, which he did. He was interviewed by two police detectives without counsel present. Bartelt was not read his Miranda rights, was not placed under arrest, and was told by detectives he could end the interview and leave the police station at any time.

At the onset of the interview, Bartelt was informed police were investigating an assault a week earlier in a neighborhood park, and he was asked several preliminary questions regarding that assault, to which he denied any involvement. Next, one of the detectives inquired about scrapes and cuts on Bartelt’s hands and arms, for which he had no explanation. During further questioning, Bartelt admitted he had recently visited the park where the jogger was stabbed but continued to deny involvement. Upon further interrogation, Bartelt confessed to being in the park, seeing the female jogger, and with no real motive, knocking her down to scare her. One of the detectives then asked for a written statement or confession to serve as an apology for the assault.⁷⁶

After submitting the written confession, Bartelt asked for a lawyer, and after 33 minutes, detectives ended the questioning, seized Bartelt’s cell phone, instructed him to remain in the room, and left him alone in the room. Bartelt had not yet been given his Miranda rights. Ten minutes later, detectives reentered the room and formally placed Bartelt under arrest.

The next day, Bartelt was interviewed by detectives from the Washington County Sheriff’s Department regarding his deceased ex-girlfriend, Blodgett. This time, he was given his Miranda rights, and waived the right to remain silent or to request counsel. For the next 90 minutes detectives questioned him about Blodgett and the events surrounding the day of her death.

At some point, Bartelt revealed that on the day of Blodgett’s murder he spent a few hours at Woodlawn Union Park. He followed this declaration with a request for a lawyer. This new information prompted one of the detectives to canvass the park, which resulted in collection of evidence, including rope, tape, and antiseptic wipes with red stains. After analysis, the evidence was found to contain DNA of Blodgett and Bartelt. Based on the confession from the first interview, coupled with the new DNA evidence, Bartelt was charged with first-degree intentional homicide of Blodgett. He was also charged with attempted homicide, reckless endangerment, and attempted false imprisonment of the jogger.⁷⁷

Bartelt filed a motion to suppress his statements on the basis that police violated his Miranda rights during his first interview. The circuit court ruled that he was not in police custody until 10 minutes after he confessed to assaulting the jogger; therefore, no Miranda warnings were necessary and the motion to suppress was denied. At trial, Bartelt was found guilty of first-degree intentional homicide and was sentenced to life in prison. He then pleaded guilty to reckless endangerment of the jogger and received an extra five years added to his sentence after prosecutors agreed to dismiss all remaining counts.

On appeal, Bartelt challenged the denial of the motion to suppress. He argued that after he confessed to assaulting the jogger, he was in police custody for purposes of Miranda. That is, no reasonable individual under the same circumstances would believe he was free to leave the police station. He argued that this belief thereby converted the noncustodial interview into a custodial interrogation, and the Fifth Amendment was violated when he was questioned by detectives after the confession without counsel present. The court of appeals rejected these arguments and affirmed the conviction, and the supreme court granted review.⁷⁸

The court began with the Fifth Amendment, which provides that no person shall be compelled to be a witness against himself or herself in a criminal case. Under Miranda, the Fifth Amendment requires law enforcement officers to inform suspects of the right to remain silent and the right to have an attorney present during custodial interrogation. These warnings are required because “[t]he circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of the suspect.”⁷⁹

When a suspect is “in custody” there is an increased risk that statements are not the result of the suspect’s free will. Law enforcement officers must immediately cease questioning once a suspect has asserted the right to counsel during a custodial interrogation. Custodial interrogation is questioning initiated by law enforcement after a person has been taken into custody or otherwise is deprived of freedom of action in any significant way.⁸⁰

Whether a person is “in custody” under Miranda is an objective test. Specifically, looking at the totality of the circumstances, would a reasonable person not feel free to terminate the interview and leave the scene? This considers factors such as the degree of restraint and the purpose, place, and length of the interrogation. If the suspect’s freedom of movement was curtailed such that a reasonable person would not feel free to leave, the court then considers whether the environment presented the same “inherently coercive pressures as the type of station house questioning in Miranda.”⁸¹

The court considered whether Bartelt was “in custody” at any time before police took his cell phone and instructed him to remain in the room. It was agreed the first interview began as noncustodial, but Bartelt argued that when he confessed to the attack, that transformed his status to “in custody,” in which a reasonable person would not feel free to leave. He argued that all questioning should have ceased once he asked for counsel, and his rights were violated when police approached him the following day about Blodgett’s murder without counsel present.

Using the totality-of-circumstances approach, the court considered whether a reasonable person in Bartelt’s situation would have felt at liberty to terminate the first interview and leave the police station. The court explained that some degree of coercion is part and parcel of the interrogation process, and coercive aspects of a police interview are largely irrelevant to the custody determination except when a reasonable person would perceive the coercion as restricting his or her freedom to leave. Presenting a suspect with incriminating suggestions does not automatically transform an interview into a custodial interrogation. Under the totality of the circumstances, the court held that Bartelt was not “in custody” at the time of his confession.⁸²

Next the court considered whether a voluntary confession to a serious crime automatically transforms a noncustodial interview into a custodial interrogation. The confession is merely one factor in the analysis, and whether a confession may transform the interrogation into “in custody” depends on the facts. In Bartelt’s case, the court held that such a transformation did not occur. Both before and after the confession, police spoke in a conversational tone. Although one detective moved closer after catching Bartelt in lies, the discussion was not otherwise aggressive or confrontational. The detectives continued to ask for details regarding the attack, which Bartelt continued to supply.

Further, the fact that Bartelt was arrested at the end of the interview does not necessarily mean that he was in custody at any point before the arrest. Although police officers suspected they had enough evidence to arrest upon the confession, that it in itself did not restrain Bartelt’s freedom of movement. The court reasoned that it is law enforcement officers’ conduct that determines whether a suspect has been taken into custody. This is a fact-specific inquiry and the totality of the circumstances must be evaluated in full.⁸³

Considering all the circumstances, the court concluded that “although an admission of guilt to a serious crime is a factor to consider in a custody analysis, Bartelt’s admission to attacking M.R. was not enough to transform his status to that of ‘in custody’ given the totality of the circumstances. Because Bartelt was not in custody when he asked about counsel, his Fifth Amendment right to counsel did not attach.” Rather, Bartelt was not “in custody” until the detectives took his cell phone, approximately 10 minutes after his confession, and instructed him to remain in the interview room. Because he was not in custody until that point, which was after his request for counsel, the court did not need to reach the issue of whether the request was unequivocal.⁸⁴

Fourth Amendment Allows Police to Conduct Ordinary Inquiries, Including Requesting ID After Reasonable Suspicion for Traffic Stop Has Dissipated

State v. Smith.⁸⁵ In Smith, the court decided whether under the Fourth Amendment an officer may continue a traffic stop to obtain identification after the basis for reasonable suspicion has dissipated when the officer approaches the vehicle.

Under the Fourth Amendment, police must have reasonable suspicion for a traffic stop. The stop may continue as long as reasonably necessary to fulfill the stop’s mission.

Applying the U.S. Supreme Court’s recent decision on the scope of constitutionally reasonable traffic stop seizures, Rodriguez v. United States,⁸⁶ the Wisconsin Supreme Court held in Smith that “ordinary inquiries” are part of the mission of every lawful and reasonably executed traffic stop. The mission of such stops is not completed until the police officer checks a driver’s identification, even if reasonable suspicion for the stop dissipates as the officer approaches the vehicle. Asking for a driver’s license does not impermissibly extend a stop because it is part of the original mission of the stop. The ordinary inquiries of the stop must be completed within the time it should have reasonably taken to complete them.⁸⁷

In Smith, a Madison police officer was patrolling a neighborhood in regard to potential retaliation for a recent gang-related shooting when he observed a vehicle with dark tinted windows abruptly stop in the middle of the street, let out a passenger, and drive off. The officer ran the vehicle’s registration and learned that its registered owner, a woman named Amber Smith, had a suspended license. Believing the vehicle was engaged in suspicious activity, the officer initiated a traffic stop, but the vehicle continued and made several turns before stopping in a parking lot.

Upon approaching the vehicle, the officer observed that the driver was male, and asked him to roll down the window or open the door. The occupant, Smith, advised that both the driver’s side window and door were inoperable. The officer walked to the passenger side of the vehicle while Smith also moved toward the passenger side, and then both the officer and Smith simultaneously opened the vehicle door.⁸⁸

Once the door was opened, the officer observed Smith had bloodshot eyes and smelled a strong odor of alcohol. When asked for his license, Smith responded that it had been revoked. After failing multiple field-sobriety tests, Smith was placed under arrest and transported to the police station, where he refused to voluntarily submit a blood sample. A warrant was obtained for an evidentiary blood test, prompting Smith to voluntarily provide a breath sample. His breath test registered a 0.38 blood-alcohol-content level. Smith was charged with operating a vehicle while intoxicated (OWI).⁸⁹

Smith moved to suppress all evidence acquired from the traffic stop, arguing that once the officer confirmed the vehicle was being driven by a man, not the woman owner whose license was suspended, all reasonable suspicion for the stop dissipated. He argued that at that time, the traffic stop should have immediately ceased. All evidence subsequently obtained should be suppressed. Smith additionally argued that his Fourth Amendment rights were violated when the officer opened the passenger door to speak with him. The circuit court denied the suppression motion, and Smith pleaded guilty to OWI.⁹⁰

Smith appealed, arguing that 1) reasonable suspicion for the initially lawful traffic stop dissipated the moment the officer observed a man, not a woman, driving the car and the failure to immediately end the stop resulted in an improper extension of the duration of the seizure; and 2) there was an unlawful search in violation of the Fourth Amendment when the officer opened the vehicle’s passenger door without consent or probable cause. The court of appeals found the state’s response brief too cursory to warrant a review on the merits, vacated the conviction, and remanded, ordering the circuit court to grant the suppression motion. The supreme court granted the state’s petition for review of that decision.⁹¹

The issues before the court were whether the law enforcement officer violated the Fourth Amendment by asking for Smith’s license during the traffic stop even after reasonable suspicion dissipated upon approaching the vehicle or by opening the passenger side door after being advised the driver’s side door and window were inoperable. The reasonableness of the traffic stop considers first, whether the initial traffic stop was justified, and second, whether the later police conduct was reasonably related in scope to the circumstances that justified initial traffic stop. Preliminarily, the initial seizure-traffic stop of Smith was justified because the officer had reasonable suspicion to stop the vehicle based on the fact the car was engaged in suspicious activity in an area under surveillance for gang activity, which triggered the officer to run the vehicle registration that revealed the car was registered to an unlicensed woman driver.⁹²

Next, the court considered the second prong of the reasonableness inquiry – whether the officer’s later conduct was reasonably related in scope to the circumstances justifying the initial traffic stop. The suspicion supporting the traffic stop ceased to exist the moment the officer realized the occupant of the car was a man, not a woman. Therefore, the question was whether the officer was required to immediately terminate the stop.

The court held that “the Fourth Amendment [does not] require a police officer to freeze, do an about-face, and walk away.”⁹³ Specifically, the court explained that a lawful traffic stop includes both contemplating whether to issue a traffic citation and conducting the “ordinary inquiries” of checking to see if the driver is licensed to operate the vehicle and if the vehicle is properly registered and properly insured. Therefore, when the officer discerned the driver of the vehicle was a man, the first part of the traffic stop ended; however the second part, that is, the “ordinary inquiries,” had not been performed.

Accordingly, the court held that the stop in Smith’s case did not violate the Fourth Amendment. “The mission of the lawful traffic stop did not end when reasonable suspicion dissipated because at that moment, the sergeant had not completed the ordinary inquiries of checking Smith’s license, registration, and insurance. Before [the officer] could complete the ordinary inquiries incident to the stop, he discovered Smith did not have a valid driver’s license and saw signs Smith had been driving drunk.” At that point, the officer had “probable cause to extend the stop to investigate and eventually arrest Smith for drunk driving.”⁹⁴

The court then considered whether the officer’s opening of the passenger door established a distinct Fourth Amendment violation necessitating further reasonable suspicion. The reasonableness of a search and seizure depends on the particular facts of the case. Here, the officer approached the driver’s door, asked Smith to roll down the window or open the door to speak to him, and was told that both the door and window were broken. Smith appeared to assist the officer with opening the door, and both parties opened the door together; therefore the officer made a reasonable inference that Smith’s actions indicated he was voluntarily opening the passenger door.

The court held that the act of opening the passenger door did not violate the Fourth Amendment because under the circumstances the action was reasonable and the intrusion on Smith’s personal liberty was incremental, de minimus. The act of opening the passenger door to facilitate a face-to-face encounter with the driver did not constitute an unreasonable search.⁹⁵

“Greater Latitude” When Admitting Evidence of Prior Similar Acts of Domestic Abuse

State v. Dorsey.⁹⁶ In April 2014, the statute regarding admissibility of prior-acts evidence to prove guilt was amended to provide greater latitude in admitting into evidence past commission of serious sex offenses and domestic abuse.⁹⁷ In Dorsey, the court considered the standard for admission of prior-acts evidence in light of the amended statute and whether evidence of Dorsey’s prior bad acts against another victim was properly admitted.

In 2014, Anton Dorsey was charged with strangulation and suffocation, misdemeanor battery, disorderly conduct, and aggravated battery of his then-girlfriend, C.B. Before trial, prosecutors filed a motion to admit into evidence Dorsey’s two past domestic violence convictions against his ex-girlfriend, R.K., under newly amended Wis. Stat. section 904.04(2)(b)1. to prove Dorsey’s intent to cause bodily harm to C.B. The state argued that evidence of these previous convictions was admissible under the three-prong Sullivan test for admission of other-acts evidence.

The three-step Sullivan test holds that other-acts evidence is admissible if 1) it is offered for a permissible purpose under Wis. Stat. section 904.04(2)(a), 2) it is relevant under Wis. Stat. section 904.01, and 3) its probative value is not substantially outweighed by the risk of unfair prejudice under Wis. Stat. section 904.03. The state contended that Dorsey’s prior-crimes evidence should be admitted to establish his intent and motive to cause bodily harm and dominate C.B.; to prove relevance; and to document that Dorsey bore the burden of avoiding unfair prejudice. The circuit court permitted the admission of Dorsey’s prior-acts evidence, concluding that section 904.04(2)(1) “provid[es] greater latitude … similar … to the serious sex offense business and making it available more to be able to be used in the case in chief than [the court] would provide.”⁹⁸

At trial, C.B. and R.K testified regarding violent episodes initiated by Dorsey’s anger and jealousy. Dorsey maintained C.B.’s allegations were false, and later admitted the past violent acts against R.K. were accurate. The circuit court instructed jurors that evidence regarding Dorsey’s past conduct could only be considered on the issues of motive and intent, and it could not be considered to determine he possesses a bad character or that he acted in conformity with his bad character in respect to the charged crime against C.B.

Dorsey was found guilty on three of the four domestic assault counts. He appealed, and the court of appeals affirmed the conviction. The supreme court granted Dorsey’s petition for review.⁹⁹

Dorsey argued that Wis. Stat. section 904.04(2)(b)1. does not afford courts “greater latitude” to admit other-acts evidence of domestic abuse. The court disagreed, holding that “for the types of cases enumerated under Wis. Stat. § 904.04(2)(b)1., circuit courts should admit evidence of other acts with greater latitude under the Sullivan analysis to facilitate its use for a permissible purpose.”¹⁰⁰

“[W]e conclude that Wis. Stat. § 904.04(2)(b)1. permits circuit courts to admit evidence of other, similar acts of domestic abuse with greater latitude, as that standard has been defined in the common law, under Sullivan, because it is the most reasonable interpretation in light of the context and purpose of the statute. As a practical matter, not only does our analysis afford due respect to the words of this legislation, but maintaining the well-established Sullivan analysis, with greater latitude in domestic abuse cases, also provides a framework for litigants and our courts to create a thorough record of the arguments and rulings concerning other-acts evidence.”¹⁰¹

The court then considered the circuit court’s admission of the other-acts evidence and whether the evidence of Dorsey’s prior acts was properly admitted under the statute, applying the erroneous-exercise-of-discretion standard of review. The circuit court properly applied the applicable standard. The other-acts evidence was offered to establish Dorsey’s intent and motive to cause C.B. harm, and the evidence was relevant to prove intent and motive.

Finally, the supreme court held that the circuit court reasonably held that the probative value outweighed the danger of unfair prejudice. The prior acts were near in time and similar in place and circumstance to the charged acts. The circuit court minimized the prejudice by excluding evidence of Dorsey’s convictions for the prior acts and by giving cautionary instructions at the close of the evidence regarding the use of the other-acts evidence. The supreme court accordingly held that the admission of the other-acts evidence was not an erroneous exercise of discretion because the circuit court applied the proper standard, used a demonstrated, rational process, and reached a conclusion that a reasonable judge could reach based on the facts of record.¹⁰²

Application of Wis. Stat. section 907.02 and the Daubert Standard

State v. Jones.¹⁰³ In 2011, Wis. Stat. section 907.02 was amended to adopt the federal Daubert standard for expert testimony. In Jones, the supreme court, applying Wis. Stat. section 907.02 and considering Daubert, affirmed the circuit court’s admission of expert testimony regarding the results of actuarial tools predicting the risk of a sex offender reoffending in the future.

The expert testimony was provided in a jury trial held on a petition to commit Jones as a sexually violent person pursuant to Wis. Stat. chapter 980. Jones was incarcerated for three convictions for second-degree sexual assault. The state filed a chapter 980 petition in an attempt to commit and classify Jones as “a sexually violent person.” The petition was based on various evidence, including Jones’ scores on four actuarial instruments, among them the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) and the Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR).¹⁰⁴ Before the commitment trial, Jones filed a motion in limine to exclude expert testimony concerning these actuarial tools, arguing they were not based on sufficient facts or data, were not the product of reliable principles and methods, and were not reliably applied to the facts of his case. The actuarial tools were developed to estimate risk for sexual recidivism in incarcerated sex offenders.¹⁰⁵

The circuit court held a two-day hearing on the motion, at which experts testified concerning the actuarial tools. The circuit court concluded that testimony as to the results from the Mn-SOST-R and the RRASOR tests was admissible; the hearing testimony showed that the tests and the testimony were the product of sufficient facts and data and the product of reliable principles and methods. Criticism of the data underlying the tests as outdated goes to the weight, not the admissibility, of the testimony, and is a question for the jury.

The trial included expert testimony regarding the application of the RRASOR and MnSOST-R tests to evaluate Jones’ risks of recidivism. The jury returned a verdict finding Jones to be “a sexually violent person” pursuant to Wis. Stat. chapter 980. Jones appealed and the court of appeals affirmed, finding the circuit court properly exercised its discretion in admitting the expert testimony including the actuarial test results.¹⁰⁶ The supreme court granted review.

Admissibility of expert testimony is governed by Wis. Stat. section 907.02. The statute requires a circuit court to determine before admitting expert testimony whether 1) the scientific, technical, or other specialized knowledge will assist the jury in understanding the evidence or facts at issue; 2) the expert is qualified as an expert by knowledge, skill, experience, training, or education; 3) the testimony is based on sufficient facts or data; 4) the testimony is the result of reliable principles and methods; and 5) the expert applied the principles and methods reliably to the facts of the case.

Before the statute was amended, the court’s role in admitting expert testimony was as a “gatekeeper.” The heightened standard of Wis. Stat. section 907.02 did not change the gatekeeping function. However, it now requires a trial court to make a “threshold determination” as to the reliability of the evidence to determine whether it is reliable enough to be introduced to the jury. To accomplish this, courts examine whether the expert testimony is based on sufficient facts or data and is the product of reliable principles and methods and whether the expert witness applied the same principles and methods reliably to the facts. The supreme court explained that “[t]hese requirements represent Wisconsin’s adoption of the federal Daubert standard.”¹⁰⁷

In applying this standard, courts typically consider whether the evidence can be or has been tested; the theory has been subject to peer review and publication; the known and potential rate of error; standards controlling the technique’s operation; and the degree of acceptance within the relevant scientific community. Wisconsin’s adoption of the federal Daubert standard reflects the court’s role of ensuring that “junk science” remains outside the courtroom. The circuit court ultimately has the discretion whether to admit or exclude expert testimony. That decision will not be reversed unless the circuit court apparently failed to consider relevant facts, apply the proper standard, or articulate the reasonable basis supporting its decision.¹⁰⁸

Finding the circuit court considered the relevant facts, applied the proper standard, and articulated a reasonable basis for its decision, the supreme court affirmed the decision to admit the expert testimony. The court found the tests were routinely published, had undergone widespread review and criticism, and were commonly used to predict recidivism of sex offenders. Because this analysis followed the heightened standard of Wis. Stat. section 907.02 and tracked the Daubert factors, the court concluded that no erroneous exercise of discretion occurred.¹⁰⁹

Interplay Between Concealed-Carry and Safe Transport Statutes

State v. Grandberry.¹¹⁰ In the 2016-17 term, the supreme court considered an ordinance prohibiting weapons on city buses, holding that it was preempted by the concealed-carry statute and that the carrying of a weapon on a city bus could not be prohibited so long as it complies with the safe transport statute.¹¹¹ In Grandberry,the court considered these statutes again, in the criminal context, reviewing an appeal from a conviction for possessing a handgun without a concealed-carry license for a defendant who possessed a loaded handgun in his glove compartment.

Police officers made a traffic stop of Grandberry. When asked if he had firearms in the car, he told the officers he had a gun in the glove compartment and falsely said he had a concealed-carry license. Searching the license database, officers discovered he did not hold a concealed-carry license and arrested him for possession of a concealed and dangerous weapon contrary to Wis. Stat. section 941.23(2) (the concealed-carry statute).He was convicted, and his conviction was affirmed on appeal.¹¹²

The concealed-carry statute is a general prohibition applying to a person who “carries a concealed and dangerous weapon.” “Carries” a dangerous weapon means “went armed with.” Under longstanding Wisconsin law, a person “goes armed” with a weapon when it is “within reach” or on his person. In a motor vehicle, a person “goes armed” with a weapon when it is within reach, such as on a shelf on the back of the person’s seat. The handgun inside Grandberry’s glove compartment was within reach and therefore he violated the general prohibition of the concealed-carry statute.¹¹³

The safe transport statute prohibits placing, possessing, or transporting a firearm in a vehicle unless the firearm is unloaded or is a handgun. In 2011, the handgun exception was added, and the requirement to encase firearms was eliminated. Under the safe transport statute, handguns in a motor vehicle may be both loaded and uncased.

Grandberry argued that the two statutes are in conflict because placing a loaded handgun in a motor vehicle can comply with the safe transport statute but violate the concealed-carry statute. He argued that this conflict must be resolved by holding that a person in compliance with the safe transport statute does not “carry” for purposes of the concealed-carry statute. The supreme court disagreed. Statutes conflict if it is impossible to comply with both. The court held: “Compliance with both statutes is not only possible, it is required.”¹¹⁴ One can comply with the concealed-carry statute and the safe transport statute by placing the firearm out of reach in a vehicle.

Grandberry argued that firearms located anywhere in the interior of the vehicle are within reach and thus “carried.” The court rejected that argument, reasoning that the concept of “within reach” has never been defined so broadly. The court explained that “[n]o part of a motor vehicle is, as a matter of law, within reach.”¹¹⁵

The court explained: “Citizens who seek to comply with both statutes have at least two reasonable means of doing so: (1) obtaining a concealed carry license; or, (2) placing their firearms out of reach.” To determine whether a handgun is within reach, citizens and courts should consult precedent and “common sense,” considering factors such as “the location of the dangerous weapon in the motor vehicle relative to the location of its possessor, the motor vehicle’s size, and the possessors ability to reach the dangerous weapon while in the motor vehicle.”¹¹⁶

Finally, the court rejected Grandberry’s vagueness argument. He argued that read with the safe transport statute, the concealed-carry statute is unconstitutionally vague as applied to him. A penal statute must be sufficiently definite so ordinary persons can understand what conduct is prohibited, and in a manner that does not encourage arbitrary and discriminatory enforcement.

The court held that a person of ordinary intelligence in Grandberry’s situation – placing a loaded handgun in a vehicle’s glove compartment – would have fair notice that this conduct violates the concealed-carry law. The statute provides sufficient notice that carrying a concealed and dangerous weapon is prohibited unless one of the concealed-carry exceptions is met. Indeed, Grandberry demonstrated his understanding when he told officers (falsely) that he possessed a concealed-carry license.¹¹⁷

Endnotes

¹ This total excludes decisions issued in attorney discipline and bar admission matters. In three more civil cases, the court was equally divided and therefore the court of appeals decision was affirmed, and in another, Halbman v. Barrock, 2017 WI 91, 378 Wis. 2d 17, 902 N.W.2d 248, it decided review was improvidently granted and dismissed the appeal. Alan Ball, The Supreme Court’s 2017-18 Term: Some Initial Impressions, (July 23, 2018); Alan Ball, Wisconsin Supreme Court Statistics, 2017-2018, (July 24, 2018) (in the 2016-17 term, there were eight fractured decisions (16 percent); this number decreased in the 2017-18 term to only four fractured decisions (6 percent).)

² Joseph S. Diedrich, “The State of Stare Decisis in Wisconsin,” Wis. Law., Nov. 2018 (“The Wisconsin Supreme Court overruled itself three times in the 2017-18 term.”). Those cases are Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678; Tetra Tech EC Inc. v. Wisconsin Department of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21; and State v. Reyes Fuerte, 2017 WI 104, 378 Wis. 2d 504, 904 N.W.2d 773. Id.

³ See Maria L. Kreiter, Erin M. Cook & Rebeca M. Lopez, “Reining It In: Limits to Employee Nonsolicit Covenants,” Wis. Law., April 2018 (discussing Manitowoc v. Lanning, 2018 WI 6, 379 Wis. 2d 189, 906 N.W.2d 130.)

⁴ Davorin J. Odrcic, “The Immigration Consequence of a Plea,” Wis. Law., May 2018 (discussing State v. Reyes Fuerte).

⁵ 2018 WI 88, 383 Wis. 2d 358, 914 N.W.2d 708.

⁶ Id. ¶¶ 7, 8.

⁷ Id. ¶¶ 1, 9, 12-16, 59.

⁸ Id. ¶¶ 15-17, 22.

⁹ Id. ¶¶ 18, 20, 21, 57.

¹⁰ Id. ¶¶ 23, 25-28, 31, 32.

¹¹ Id. ¶¶ 9-11, 33-35, 39, 42-44, 48-49, 57, 59.

¹² Id. ¶¶ 50, 51, 53, 57.

¹³ Id. ¶¶ 54-56, 58; McConnell v. Howard Univ., 818 F.2d 58 (D.C. Cir. 1987).

¹⁴ McAdams, 2018 WI 88, ¶ 58, 383 Wis. 2d 358.

¹⁵ Id. ¶¶ 59, 61, 62, 64, 80, 83.

¹⁶ Id. ¶¶ 67, 70.

¹⁷ Id. ¶¶ 67, 68, 71.

¹⁸ Id. ¶ 69.

¹⁹ Id. ¶¶ 72, 73.

²⁰ Id. ¶¶ 73-77.

²¹ Id. ¶¶ 77, 88.

²² Id. ¶¶ 84, 85, 92, 93, 95.

²³ 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21.

²⁴ Hon. Patience Drake Roggensack, “Elected to Decide: Is the Decision-Avoidance Doctrine of Great Weight Deference Appropriate in this Court of Last Resort?” 89 Marq. L. Rev. 541 (2006).

²⁵ Operton v. Labor & Indus. Review Comm’n, 2017 WI 46, ¶ 73, 375 Wis. 2d 1, 894 N.W.2d 426 (R. Bradley, J., concurring).

²⁶ Tetra Tech, 2018 WI 75, ¶¶ 2, 3, 108, 382 Wis. 2d 496.

²⁷ 196 Wis. 2d 650, 659, 539 N.W.2d 98 (1995).

²⁸ Tetra Tech, 2018 WI 75, ¶ 9, 382 Wis. 2d 496; Wis. Stat. § 227.57(5), (10).

²⁹ Tetra Tech, 2018 WI 75, ¶¶ 9-14, 382 Wis. 2d 496.

³⁰ Id. ¶¶ 17-22, 23-28, 30-33.

³¹ Id. ¶¶ 34-41.

³² Id. ¶¶ 15, 16.

³³ Id. ¶¶ 83-85.

³⁴ Id. ¶¶ 42-71 (separation of powers/constitutional basis); id. ¶¶ 82-93 (administrative reasons)

³⁵ Id. ¶¶ 95-104.

³⁶ Id. ¶ 106.

³⁷ 2018 WI 76, ¶¶ 4, 29, 42, 382 Wis. 2d 624, 914 N.W.2d 1, as amended on denial of reconsideration sub nom. Wisconsin Bell Inc. v. LIRC, 2018 WI 100, ¶ 4 (“[W]e decided to end our practice of deferring to administrative agencies' conclusions of law.”).

³⁸ 2018 WI 77, ¶¶ 4 n.4, 12, 13, 382 Wis.2d 611, 914 N.W.2d 625.

³⁹ 2018 WI 11, 379 Wis. 2d 439, 906 N.W.2d 436.

⁴⁰ Id. ¶¶ 5, 25, 26.

⁴¹ Id. ¶¶ 4, 25.

⁴² Id. ¶¶ 2, 6, 7, 8, 9, 12.

⁴³ Id. ¶¶ 13-16.

⁴⁴ Id. ¶¶ 17-20; Wis. Stat. §§ 19.31-.37 (public records law).

⁴⁵ Madison Teachers Inc., 2018 WI 11, ¶¶ 21-22, 24, 379 Wis. 2d 439.

⁴⁶ Id. ¶¶ 35, 37.

⁴⁷ Id. ¶ 33.

⁴⁸ Id. ¶¶ 27, 29-30, 34.

⁴⁹ Id. ¶ 37.

⁵⁰ 2018 WI 63, 382 Wis. 2d 1, 913 N.W.2d 131.

⁵¹ Id. ¶¶ 1, 3.

⁵² Id. ¶ 2; Wis. Stat. § 66.1105(4)(gm)4.a. (50 percent or more of area is blighted); Wis. Stat. § 66.1105(4m)2 (finding that development would not occur “but for” the TID).

⁵³ Voters with Facts, 2018 WI 63, ¶ 2, 382 Wis. 2d 1; Wis. Const., art. VIII, § 1 (Uniformity Clause); Wis. Stat. § 66.1105(2)(f)1.a. (project costs claim regarding use of cash grants for demolishing historic buildings).

⁵⁴ Voters with Facts, 2018 WI 63, ¶¶ 4, 24, 26, 68, 382 Wis. 2d 1.

⁵⁵ Id. ¶¶ 28-31; Wis. Stat. § 66.1105(4)(gm)4.a., (2)(ae)1.a.

⁵⁶ Voters with Facts, 2018 WI 63, ¶¶ 32-36, 382 Wis. 2d 1.

⁵⁷ Id. ¶¶ 36-37, 39-40.

⁵⁸ Id. ¶¶ 41-44, 46-48; Wis. Stat. § 66.1105(4m).

⁵⁹ Voters with Facts, 2018 WI 63, ¶¶ 49-50, 382 Wis. 2d 1; Wis. Stat. § 66.1105(2)(f)1.

⁶⁰ Voters with Facts, 2018 WI 63, ¶¶ 54-55, 56-67, 382 Wis. 2d 1.

⁶¹ Id. ¶¶ 5, 25, 69-72, 74.

⁶² Id.

⁶³ Id. ¶ 69.

⁶⁴ 2017 WI 110, 379 Wis. 2d 1, 904 N.W.2d 789, cert. denied, 139 S. Ct. 101 (2018).

⁶⁵ Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987).

⁶⁶ Sands, 2017 WI 110, ¶¶ 1, 5, 7, 379 Wis. 2d 1.

⁶⁷ Id. ¶¶ 1, 14, 15, 16, 20, 24, 26, 44, 57, 61, 66.

⁶⁸ Id. ¶¶ 29, 30, 34, 35, 41, 42.

⁶⁹ Id. ¶¶ 3, 43, 45, 47.

⁷⁰ Id. ¶¶ 48, 49.

⁷¹ Id. ¶ 50.

⁷² Id. ¶¶ 51-52, 73.

⁷³ Id. ¶¶ 3, 53-55, 59-61, 63, 65, 74.

⁷⁴ Id. ¶¶ 66-68, 75.

⁷⁵ 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684, cert. denied, 139 S. Ct. 104 (2018).

⁷⁶ Id. ¶¶ 9, 10, 13, 15, 16.

⁷⁷ Id. ¶¶ 16-20.

⁷⁸ Id. ¶¶ 21-23.

⁷⁹ Id. ¶¶ 26-27; Miranda v. Arizona, 384 U.S. 436, 458, 469 (1966).

⁸⁰ Bartelt, 2018 WI 16, ¶¶ 28, 31, 379 Wis. 2d 588.

⁸¹ Id. ¶¶ 31-33.

⁸² Id. ¶¶ 34-44.

⁸³ Id. ¶¶ 46-51.

⁸⁴ Id. ¶¶ 53, 54.

⁸⁵ 2018 WI 2, 379 Wis.2d 86, 905 N.W.2d 353.

⁸⁶ 135 S. Ct. 1609 (2015).

⁸⁷ 2018 WI 2, ¶¶ 2, 37, 379 Wis. 2d 86.

⁸⁸ Id. ¶ 4.

⁸⁹ Id. ¶ 6.

⁹⁰ Id. ¶ 7.

⁹¹ Id. ¶ 8.

⁹² Id. ¶¶ 1, 10, 13.

⁹³ Id. ¶¶ 14, 15.

⁹⁴ Id. ¶¶ 20, 21, 37.

⁹⁵ Id. ¶¶ 33, 35, 37.

⁹⁶ 2018 WI 10, 379 Wis. 2d 386, 906 N.W.2d 158.

⁹⁷ See Wis. Stat. § 904.04(2)(b)(1).

⁹⁸ 2018 WI 10, ¶¶ 7-10, 379 Wis. 2d 386; State v. Sullivan, 216 Wis. 2d 786, 576 N.W.2d 30 (1998).

⁹⁹ 2018 WI 10, ¶¶ 12-17, 18, 19, 21, 379 Wis. 2d 386.

¹⁰⁰ Id. ¶¶ 25, 26, 31-33.

¹⁰¹ Id. ¶ 35 (internal citations omitted).

¹⁰² Id. ¶¶ 25, 36-58.

¹⁰³ 2018 WI 44, 381 Wis. 2d 284, 911 N.W.2d 97.

¹⁰⁴ Id. ¶¶ 2, 9, 10.

¹⁰⁵ Id. ¶¶ 2, 12.

¹⁰⁶ Id. ¶¶ 2-3, 14-25.

¹⁰⁷ Id. ¶¶ 30-32; Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 593-94 (1993).

¹⁰⁸ Jones, 2018 WI 44, ¶ 33, 381 Wis. 2d 244.

¹⁰⁹ Id. ¶¶ 34-37. The MnSOT-R had been the subject of 12 research inquiries and the RRASOR the subject of approximately 35 studies. Id. ¶¶ 16, 17, 35.

¹¹⁰ 2018 WI 29, 380 Wis. 2d 541, 910 N.W.2d 214.

¹¹¹ Wisconsin Carry Inc. v. City of Madison, 2017 WI 19, 373 Wis. 2d 543, 892 N.W.2d 233; see also Lisa M. Lawless, “Top 10 Recent Wisconsin Supreme Court Decisions,” Wis. Law. (Dec. 2017) (discussing Wisconsin Carry case).

¹¹² 2018 WI 29, ¶¶ 6, 7, 380 Wis. 2d 541.

¹¹³ Id. ¶¶ 3, 7, 14-17, 23 n.14, 37; Wis. Stat. § 941.23(2).

¹¹⁴ 2018 WI 29, ¶ 20, 21, 380 Wis. 2d 541.

¹¹⁵ Id. ¶ 30.

¹¹⁶ Id. ¶¶ 30, 31.

¹¹⁷ Id.

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